Losing Capacity Without a Power of Attorney

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What happens when capacity is lost

Ontario law assumes adults are capable until it is shown that they are not, and capacity is decision by decision: the province’s guidance notes it can differ between decisions and change over time. Under the Substitute Decisions Act, 1992 (the SDA), a person is incapable of managing property if they cannot understand the information relevant to a decision or appreciate its reasonably foreseeable consequences (section 6). Section 45 applies the same test to personal care.

A power of attorney names someone, called your attorney, to act for you. Without one, the law treats money and personal care separately. For money, Ontario’s guidance is direct: without an attorney for property, your family, including your spouse, cannot automatically step in. Someone has to be given authority, either through a capacity assessment that makes the Office of the Public Guardian and Trustee (the PGT) your statutory guardian, or through a court application. For health care, the Health Care Consent Act, 1996 already names who decides, so a court order is often not needed.

All of this is what a continuing power of attorney for property avoids. That is why we usually prepare powers of attorney together with a will in our wills and powers of attorney work.

The routes for money and property, step by step

Route 1: a capacity assessment that makes the PGT statutory guardian

Someone requests an assessment. Under section 16(1), anyone may ask an assessor to assess a person’s capacity to decide whether the PGT should become statutory guardian of property. The request must be in the prescribed form. When it concerns someone else, it must state that the requester has reason to believe the person may be incapable, and that after reasonable inquiries they know of no continuing power of attorney covering all the person’s property and no spouse, partner or relative who intends to apply to court (section 16(2)).
An assessor is chosen. Ontario’s guidance says you contact an assessor directly. Assessors are doctors, nurses, psychologists, social workers or occupational therapists trained by the Capacity Assessment Office. They set their own rates, and usually the person who asked for the assessment pays, though financial assistance is available to those who qualify.
The assessment happens, if the person agrees. Ontario’s guidance says an assessment cannot be done if the person refuses, unless it is ordered by a court.
The assessor may issue a certificate of incapacity. If the assessor finds the person incapable of managing property, they may issue the certificate and must promptly give copies to the person and the PGT (section 16(3) and (4)).
The PGT becomes statutory guardian. As soon as it receives the certificate, the PGT is the person’s statutory guardian of property (section 16(5)). It must make sure the person is told this, and told of their right to ask the Consent and Capacity Board to review the finding (section 16(6)).

A second statutory route applies to patients of a psychiatric facility. If a certificate is issued under the Mental Health Act that the patient is incapable of managing property, the PGT becomes their statutory guardian under section 15.

Route 2: a family member replaces the PGT

Statutory guardianship does not have to stay with the PGT. Under section 17(1), these people may apply to the PGT to take over: the person’s spouse or partner; a relative; an attorney under a continuing power of attorney made before the certificate that covers only part of the property; or a trust corporation, if the person’s spouse or partner consents in writing. The application is in the prescribed form with a management plan for the property (section 17(2) and (3)).

The PGT must appoint the applicant if it is satisfied they are suitable and the plan is appropriate, considering the person’s current wishes and how close the applicant is to them (section 17(4) and (5)). It may require security (section 17(6)). The new guardian receives a certificate proving their authority and must follow the plan (section 17(8), (9) and (12)). A refusal comes with written reasons, and a disputed refusal goes to court (section 18).

Route 3: a court-appointed guardian of property

Anyone may apply to the Superior Court of Justice to be appointed guardian of property, even where there is already a statutory guardian (section 22(1) and (2)). The court will not appoint one if a less restrictive alternative, which does not require a finding of incapacity, would meet the need (section 22(3)). The application must include the proposed guardian’s consent, a management plan in the prescribed form (unless the proposed guardian is the PGT), and a signed statement that the person has been told about the application and their right to oppose it (section 70(1)). It is served on the person, any attorney or guardian of the person, the PGT and the proposed guardian (section 69(1)). If no one opposes it and it includes two statements, one from an assessor who assessed the person within the previous six months, the court may decide it on paper without a hearing (sections 72 and 77).

The court considers the person’s current wishes and how close the proposed guardian is to them (section 24(5)). Someone paid to provide care or support services cannot be appointed unless they are family or the person’s attorney (section 24(1) and (2)), and a guardian living outside Ontario must post security unless the court orders otherwise (section 24(3) and (4)). The order includes the finding of incapacity and may add security, a time limit or other conditions (section 25).

Routes when there is no power of attorney: who does what
Route	Who starts it	Who decides	Key documents	Where the rule is
PGT as statutory guardian of property	Anyone, by request to an assessor	A capacity assessor	Request for assessment; certificate of incapacity	SDA s. 16
PGT as statutory guardian (psychiatric patient)	The facility	A physician under the Mental Health Act	Mental Health Act certificate	SDA s. 15
Replace the PGT as statutory guardian	Spouse, partner, relative, partial attorney, or trust corporation with spouse’s consent	The PGT (court if refusal disputed)	Application; management plan; possible security	SDA ss. 17, 18
Court-appointed guardian of property	Any person	Superior Court of Justice	Consent; management plan; statement to the person	SDA ss. 22 to 25, 69, 70
Health care and admission to a care facility	The health practitioner seeks consent	Highest-ranking available family member	None required	HCCA ss. 20, 41
Court-appointed guardian of the person	Any person	Superior Court of Justice	Consent; guardianship plan; statement to the person	SDA ss. 55 to 60, 70
Review of a finding of incapacity for property	The person under statutory guardianship	Consent and Capacity Board	Application within six months	SDA s. 20.2

Health care and other personal care decisions

If you cannot consent to treatment, section 20(1) of the Health Care Consent Act, 1996 lists who can decide for you, in this order: a guardian of the person with authority; an attorney for personal care with authority; a representative appointed by the Consent and Capacity Board; your spouse or partner; a child or parent (or a children’s aid society or other person lawfully standing in for a parent); a parent with only a right of access; a brother or sister; and any other relative. The highest-ranking person who qualifies decides (section 20(3)). To qualify, they must be capable, at least 16 unless they are your parent, not barred by a court order or separation agreement, available, and willing (section 20(2)).

For this list, “spouse” includes a married spouse and a conjugal partner who has lived with you for at least one year, has a child with you or has a cohabitation agreement with you, but not one living apart after a breakdown (section 20(7) and (8)). If no one qualifies, or people of equal rank disagree, the PGT decides (section 20(5) and (6)). Section 41 applies the same list to admission to a care facility.

Other personal care decisions, such as where you live, need a guardian of the person, and Ontario’s guidance says the only way to become one is by applying to court. Under section 55, the court appoints one only if you are incapable of personal care and no less restrictive course would do. The application includes a guardianship plan (section 70(2)), and the order says whether the guardianship is full or partial (section 58(3)). The PGT is appointed only with its written consent and if no other suitable person is available and willing (section 57(2.2)). The document that avoids all this is a power of attorney for personal care.

What changes the answer

A power of attorney that covers only part of your property

If your continuing power of attorney covers all your property, the statutory guardianship route is closed (section 16(2)(b)), and a document of that kind signed before the certificate ends a statutory guardianship once the PGT receives it with the attorney’s signed undertaking (section 16.1). An attorney whose document covers only part of the property can apply under section 17 to replace the PGT. The differences between the two documents are set out in powers of attorney for property and personal care compared.

Capacity comes back, or the finding is wrong

A person under statutory guardianship can apply to the Consent and Capacity Board to review the finding within six months after it was made, but not more than once in six months (section 20.2). Ontario lists the Board’s number as 1-866-777-7391. A statutory guardianship also ends if an assessor later finds the person capable, if a court appoints a guardian, if the guardian resigns, or on death (section 20).

Someone is at serious risk

The PGT must investigate allegations that an incapable person is suffering, or may suffer, serious adverse effects, such as losing a significant part of their property or serious illness or injury (sections 27 and 62). Ontario’s PGT page lists the investigations line as 1-800-891-0504. In an emergency, call 911.

What a guardian can and cannot do

A guardian of property manages all the person’s property, such as paying bills and applying for benefits, but cannot make personal care decisions or a will for them, Ontario’s guidance says. A guardian may take compensation under the prescribed fee scale: 3% of receipts, 3% of disbursements, and three-fifths of 1% of the annual average value of the assets (section 40 and O. Reg. 26/95, s. 1).

If the person dies, the statutory guardianship ends (section 20(1), paragraph 5), and their will, or the intestacy rules explained in who inherits if you die without a will in Ontario, take over.

Example

For example, imagine Kenneth, 74, of Markham, who has a serious stroke. He never signed powers of attorney. His house, savings and pension are in his name alone, and the bills keep coming. His wife Mei asks his bank to let her manage his account; the bank tells her it needs legal authority.

In hospital, Kenneth’s doctor finds him incapable of consenting to treatment. With no guardian, attorney or Board-appointed representative, Mei, as his spouse, ranks first under section 20 and decides, with no court order. The money takes longer. Mei arranges a capacity assessment and pays the assessor. The assessor finds Kenneth incapable of managing property and issues a certificate, so the PGT becomes his statutory guardian. Mei then applies to the PGT to replace it, with a management plan showing how she will pay the bills and look after the house. Once the PGT approves her, she receives a certificate she can show the bank. With a signed continuing power of attorney, Mei could have skipped all of this.

Common mistakes

Assuming a spouse can sign for you. Marriage gives no authority over your property. Only an attorney or guardian has it.
Requesting an assessment when a power of attorney exists. The request form requires reasonable inquiries; if a continuing power of attorney covering all the property exists, the statutory route is not available.
Choosing a route without comparing them. The statutory route and a section 17 application go through an assessor and the PGT rather than a judge. A court application is the route when, for example, a guardian of the person is also needed, since only a court can appoint one.
Treating the money guardian as the health decision-maker. A guardian of property cannot make personal care decisions; those follow the Health Care Consent Act list or a guardian of the person.
Waiting until capacity is clearly gone. A power of attorney can only be signed while you are capable of giving it.

What to do this week

If you are planning ahead: check whether you have a continuing power of attorney for property and a power of attorney for personal care, and whether they are signed and witnessed correctly. Both can be signed by video in some cases, as explained in can you sign a will by video in Ontario.
If a family member has already lost capacity: search their papers, ask their lawyer and their bank whether they ever signed a power of attorney.
List the person’s bank accounts, pensions, property and monthly bills; you will need this for any management plan.
Talk as a family about who is willing to act as guardian of property. If the person owns a business, read our notes for business owners, since a business adds planning questions of its own.
If someone is at serious risk of harm or exploitation, contact the PGT’s investigations line.
If you want help choosing a route or preparing powers of attorney now, a first consultation takes 30 minutes, by video or in person; you can book one here.

Frequently asked questions

Can I still sign a power of attorney after a diagnosis like dementia?

Often, yes, if you are still capable of giving it at the time you sign. Ontario’s guidance notes that capacity can differ between decisions and change over time, so the question is what you understand on the day. The capacity test for a continuing power of attorney is explained in what a continuing power of attorney for property is.

Who pays for a capacity assessment?

In most cases the person who requested it pays the assessor directly, at the assessor’s own rates. Financial assistance is available through the Capacity Assessment Office if the assessment can only be done by a designated assessor, the person will not refuse it, and the requester meets the financial criteria.

Can a guardian of property change the person’s will?

No. Ontario’s guidance says a guardian of property cannot make a will for the incapable person, and cannot sell property that is the subject of a specific gift in a will, subject to certain exceptions.

Can the PGT make health care decisions?

Only as a last resort, when no one on the Health Care Consent Act list qualifies or people of equal rank disagree (section 20(5) and (6)).

Can two family members share the role?

Yes. The PGT may certify two or more applicants as joint statutory guardians of property, or give each a specified part of the property (section 17(11)). A court may appoint joint guardians of property, with their consent (section 24(6)).

Sources

This page is general information about Ontario law, not legal advice for your situation. It reflects the law as of October 26, 2026.

What happens if you lose capacity without a power of attorney in Ontario?