Most people I meet believe that if something happened to them, their spouse would simply take over things like banking, etc. They picture a difficult few weeks, some paperwork, and a bank manager who understands. It’s a reasonable thing to assume. It’s also wrong, and families tend to find that out at the worst possible moment.
In Ontario, nobody automatically gains the right to manage your money. Not your spouse of forty years. Not the daughter who drives you to every appointment. That authority comes from a continuing power of attorney for property document, signed while you still have capacity. Without one, your family has to go and ask a court or a government office for permission.
I want to walk through what that actually looks like, because it’s slower and more expensive than almost anyone expects.
The short version
With a power of attorney, your family carries on seamlessly.
Without one, they apply for permission, and a government office may manage your money while they wait.
What surprises people
Ontario treats health decisions and money decisions very differently. Far too few people know about this.
For health care, there’s a safety net. The Health Care Consent Act sets out a ranked list of people who can consent to treatment on your behalf. Your spouse or partner sits near the top, then your children or parents, and so on down the list. So if you’re admitted to Peterborough Regional Health Centre unconscious, someone can lawfully make treatment decisions for you, even with no documents at all.
For your property, there’s no such list. None. The Substitute Decisions Act gives only three ways for someone to manage an incapable person’s finances:
- A continuing power of attorney for property, signed by you while you still had capacity.
- Statutory guardianship, which usually begins with the Office of the Public Guardian and Trustee.
- A guardianship order from the Superior Court of Justice.
The first takes an hour in my office. The other two take months.
What your family runs into first
The trouble starts quickly, and it starts at the bank.
Imagine a Peterborough couple in their seventies. One of them has a serious stroke. The mortgage is on automatic withdrawal, so that keeps running for a while. Then a property tax instalment comes due from an account in the incapable spouse’s name alone. The bank can’t release it. The other spouse has no legal authority over that account, and the bank isn’t permitted to invent one.
It compounds from there. A jointly registered house can’t be sold or mortgaged while one owner is incapable and unrepresented. An RRIF withdrawal can’t be redirected. An insurance claim can’t be settled. A cottage on Stony Lake can’t be transferred to the next generation, however clearly that was the plan.
Families often tell me they managed for a few months by improvising. That’s usually true. But then something needs a signature, and there’s nobody who can lawfully give one.
If you’re reading this because someone in your family is already unwell, call us. Capacity is judged decision by decision, and there’s sometimes still a window to sign. That window closes, so the call is worth making today rather than next month. (705) 749-0628.
Route one: the Public Guardian and Trustee
If a designated capacity assessor examines someone and issues a certificate of incapacity for property, the Public Guardian and Trustee becomes that person’s statutory guardian. This happens with no court hearing at all.
That means a provincial office in Toronto is now responsible for your bank accounts, your investments and your home. The staff there are competent and careful. They’ve also never met you. That means they can’t know all the details of your lives, and while they will do their best to represent the wishes of the person who is incapacitated, there are no guarantees things will go smoothly.
A family member can apply to replace the Public Guardian and Trustee. That takes a formal application and a management plan setting out the person’s assets, debts and how they’ll be handled. There’s a review fee, currently $382, and the office takes time to consider what you file. This route costs less than court, but it isn’t quick, and you’re asking a government office for something rather than exercising a right.
Route two: applying to court
Where there’s no capacity certificate, or where the family situation is more complicated, the application goes to the Superior Court of Justice.
A guardianship application is a real piece of litigation. You need evidence of incapacity from a certified capacity assessor. You need a management plan for the person’s property, and if you’re also seeking authority over personal care, a separate guardianship plan. Notice must go to family members and to the Public Guardian and Trustee. The incapable person’s own wishes and interests are weighed throughout, as they should be.
Reported costs vary a great deal with the circumstances. Uncontested applications commonly land somewhere between five and fifteen thousand dollars. That covers legal fees, a capacity assessment of roughly fifteen hundred to three thousand dollars, court filing fees and the review fee. If a family member disagrees, the figure climbs, sometimes sharply. Contested guardianship litigation between siblings is among the saddest work a lawyer sees.
The timeline is measured in months. Where matters are contested, it can run well past a year.
| With a power of attorney | Without one | |
|---|---|---|
| Who acts | The person you chose | A court or a provincial office decides |
| When | The moment it’s needed | Months later |
| Cost | One appointment, flat fee | $5,000 to $15,000 uncontested |
| Your wishes | Written down in advance | Reconstructed by others |
That first column is one appointment. A continuing power of attorney for property and a power of attorney for personal care are prepared and signed together, at a flat fee quoted before we begin. Guardianship exists because somebody did not have that appointment. Book a consultation, or call (705) 749-0628.
The questions I’m asked most
Does my will cover this?
No, and this is the single most common misunderstanding I meet. A will speaks only after you die. It gives your executor no authority whatsoever while you’re alive. Incapacity and death are different events, and they need different documents.
We hold everything jointly. Are we fine?
Partly, and only for a while. Joint accounts let day to day banking continue. They do nothing for jointly owned real estate. Nor for registered accounts like a RRIF or an RRSP, which can’t be held jointly, or for anything in one name alone. Most couples have more in one name than they realise.
Can my family just sign for me?
They can’t, and they shouldn’t try. Signing another person’s name isn’t a shortcut, it’s a serious problem, and banks are alert to it. The kindest thing you can do for your family is to make sure they never feel tempted.
Is it too late if a diagnosis has already been made?
Not necessarily. A diagnosis of dementia isn’t the same as incapacity, and capacity is decision specific. Someone in the early stages may well have the capacity to grant a power of attorney. That window does close, though, so this is worth doing sooner rather than later. If there’s any doubt, we address it carefully at the time of signing.
What if I’ve moved here from another province?
Have your documents reviewed. Powers of attorney prepared elsewhere are often recognised in Ontario, but the terminology and the formal requirements differ across the country. It’s a short review, and better done now than tested later. Our powers of attorney FAQ covers several of the questions that come up most.
Not ready to book? Start with the worksheet. Our free estate planning worksheet walks you through who would act for you, what you own and where it’s held. Most people find that filling it in answers half the question on its own, and it makes the appointment shorter if you do come in.
What I’d ask you to take from this
Guardianship in Ontario isn’t a disaster. It’s a workable process and families come through it. But it costs thousands of dollars, takes months, and hands decisions about your life to a court or a provincial office at the moment your family is least equipped to manage it.
The alternative is an appointment. Two documents, one signing, and the people you chose have authority the moment it’s needed.
Everyone puts this off. It means imagining yourself unwell, and nobody enjoys that. What I’d say is that a power of attorney isn’t really a document about you. It’s a document about the people who would otherwise be sitting in a lawyer’s office, filling out a management plan, at the worst point in their lives.
Talk to us before it’s needed
We’ve prepared powers of attorney for Peterborough and Kawarthas families since 1988. One appointment covers both property and personal care, at a flat fee quoted up front. Call (705) 749-0628, or book a consultation online.
One appointment covers both documents.
Property and personal care, prepared and signed together, at a flat fee quoted before we begin. Rated 5.0 on Google.
Note: This post is the companion to “Why Every Ontario Adult Needs a Power of Attorney”. That post explains the documents. This one explains what happens without them.
Barry W. Bussey, Ph.D. (Leiden), LL.M. (Osgoode), has appeared before the Supreme Court of Canada five times and practises wills and estates, powers of attorney, real estate, charity and non-profit law in Peterborough with Bussey Ainsworth, serving the Kawarthas since 1988.
This article is for general information only and does not constitute legal advice. Every situation is unique. Please consult with a lawyer before making decisions about powers of attorney or guardianship.
