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Levy Zavet – The Misconceptions Between Guardianship and Power of Attorney

If a person becomes incapable of making decisions for themselves, a family member, close friend, or another person or sometimes even a trust corporation often receives Power of Attorney or Guardianship in order to make decisions regarding property and/or personal care which that person is not capable of making for themselves.

But although the terms Power of Attorney and Guardian are often used interchangeably, this is not technically correct.

The rules concerning Power of Attorney and Guardianship are covered by the Substitute Decisions Act, 1992. This piece of legislation goes into great detail about the roles and responsibilities those with Guardianship and those with Power of Attorney, but in this article we will stick to some of the major differences.

What is a Power of Attorney?

The first misconception is that a Power of Attorney is a person assigned to make decisions concerning property and/or personal care for another person who is incompetent or incapable. This is incorrect. A Power of Attorney is actually the legal document which assigns authority to another to make those decisions.

The person for whom the decisions are being made is called the grantor. In order for a Power of Attorney to be valid, the grantor must make the Power of Attorney when they are capable of doing so. The person who has been granted to make decisions is called the Attorney (although this does not necessarily mean they are a lawyer).

The grantor may assign Power of Attorney for Property and Power of Attorney for Personal Care to the same person(s) or they may assign those to two different people or groups of people.

So, what happens if a loved one becomes incompetent and now Power of Attorney has been granted?

A common misconception is that you can apply to the Court to get a Power of Attorney. This is also incorrect. The Court cannot grant Power of Attorney for property or personal care over another person. What the Court may grant however is Guardianship of the Property or Guardianship of the Person.

What is Guardianship?

A Guardian for property and/or of the person is a substitute decision maker who makes decisions for an incapable person in much the same way that someone with Power of Attorney would. The main difference is that Guardianships are appointed by the Court – usually because there was no Power of Attorney in place.

With a few exceptions, a Guardian for Property may not be someone who is being paid to provide social or health services or support to the incapable person. Exceptions include spouse, common law partner, or relative of the incapable person.

Another important difference is that Guardians may be required to apply to the Court in order to make certain decisions and in the case of Guardianship for property, they may be required to submit to audits to review how they are managing the incapable person’s assets.

Contact Levy Zavet today

If you would like to appoint someone with Power of Attorney for yourself, or if you have a family member that you believe is incompetent and for whom you would like to apply for guardianship, contact Levy Zavet today to speak with one of our lawyers.