November 4, 2014 By:
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We are all aging – both parents and children – and this is a natural progression in life. For those parents who have children with developmental or mental health challenges however, the aging process brings with it a new set of problems. As people age through their teens and into their 20s, they become adults and are considered to be able to do their own banking, make contracts and generally make their own decisions.

Many people with disabilities can certainly manage their own affairs and live independently. Some, however, have difficulties and are unable to live outside their parents’ home or another type of sheltered environment.

Parents are also getting older, and in time, they are unable to provide that sheltered environment for their children with disabilities. When one or both parents die, then the child with disabilities has a real problem, unless plans have previously been put in place to provide the proper structure and environment for the child.

Many parents with adult children with disabilities will have a joint bank account with the child, or pay the child’s expenses from the parents’ own resources. This is a limited solution for the ongoing care of the child and certainly becomes more precarious as the parent ages.

In dealing with financial independence, the question that is always asked is, ‘What is the child’s mental capacity?’ This is both a very sensitive issue as well as a very confusing one. A person may be assessed as mentally capable of making many or all of his/her personal care decisions, but not be mentally capable of making a Will or a power of attorney. On the other hand, a person might be assessed as mentally capable of making a Will, but of not making a power of attorney.

Depending on the mental capacity of the child, it is much better and a more long range solution to take one or more of the following approaches to the long-term economic and environmental security of a child with disabilities:

If the adult child is mentally capable of making a Will, the child should make a Will to deal with his/her assets on the child’s death. If the adult child is mentally capable of making a continuing power of attorney for financial matters and a power of attorney for personal care, the child should make these powers of attorney to ensure there are named persons to make financial and/or treatment decisions for the child over time.

If the adult child is not mentally capable of making powers of attorney, a guardianship application should be made to the Superior Court of Ontario to appoint a person or persons as the guardian of the child’s finances and personal care to make the financial and/or treatment decisions for the child over time.

Making a Will and/or powers of attorney, or appointing a guardian for an adult child should be done when the child becomes an adult, not when the parents are approaching the end of their lives. This is to put in place the necessary support network that will allow the child to continue to develop
to the fullest extent possible and to also allow the parents the comfort of knowing that there are people or an institution in place that will provide backup or continuing support for the child later in life.

A child becomes an adult in Ontario at age 18. This is the age at which they can make a Will or a power of attorney If this is not possible, then this is the age that parents should take steps to have themselves or others appointed as a guardian of the disabled child – both for the disabled child’s assets as well as his or her personal care.

One should be aware that the Substitute Decisions Act of Ontario (SDA) provides that if an adult person is found to be incapable and does not have powers of attorney or a guardianship appointment in place, the Public Guardian and Trustee of Ontario (PGT) then becomes the guardian of that disabled person. It is therefore important that steps be taken sooner rather than later when the disabled child becomes an adult.

The first step in a disabled child making a Will and/or a power of attorney, or in having a guardian appointed for the child is to have a capacity assessment of the child. The SDA contemplates that the disabled person will be assessed
by a capacity assessor as part of any guardianship application, but apart from this, a capacity assessment is also a method of proving to future questioners that the Will and/or powers of attorney made by the disabled child were
made while the child had the capacity to do so.

The Province of Ontario has designated persons who often both practice in the mental health field and who are also specifically trained to be capacity assessors. A roster of capacity assessors throughout the province is maintained and updated by the Province of Ontario and is available either on the Ministry website or on request from the PGT There is a fee charged by capacity assessors to make the assessment and this fee is usually borne by the family or the person being assessed.

A guardianship application is an application made to the Superior Court of Justice for Ontario by the person or persons who wish to be appointed guardians of the disabled child. Depending on the child’s assessed capacity, there are two parts to the guardianship application: to manage the child’s assets; and to manage the child’s personal care.

For each part of the application, a management plan must be developed.Through discussions with the PGT, the province has developed a set of standardized questions which must be answered by the applicant in completing the management plan documentation. The completed guardianship application and management plans are then sent to and reviewed by the PGT. If the application is complete and the PGT approves the plans, the PGT will consent to the guardianship application and a formal Court approval is then obtained administratively without a formal hearing before a judge. If the PGT does not approve some of the provisions of the management plans,the Court is advised and the application then is determined by a judge at a hearing.

In considering the contents of powers of attorney or guardianship, the parents and the child should take into account the necessity of flexibility in the documentation to ensure that the child’s future financial security and that ongoing medical issues are either addressed or can be addressed by the attorney or guardian. It is important that the documents provide for alternate attorneys or guardians in the event that the attorney’s or guardian’s own plans or situations change. It is also important that those persons named for the various roles as attorneys or guardians have some interest and experience in the roles for which they
are being considered. Certainly, when a choice must be made, empathy for the adult child should be paramount.

Payment for the attorney’s or guardian’s duties should also be considered. The SDA states that an attorney or guardian for financial matters may be paid up to an amount set out in the SDA regulations. I have found that in the case of long term attorney or guardianship administration, some sort of compensation is often welcomed because the attorney/guardian is, to some degree, altering their own life to include the disabled adult child. Currently, any compensation to a guardian must be reviewed by the PGT and approved by the Court every three or five years. There is expectation that the PGT will take on an expanded monitoring role of powers of attorney in the future, which may include approval of compensation to attorneys as well. Currently, this is not the case.

The parents themselves should look at their own Wills and financial situations to ensure that their adult child with a disability will be as well cared for as possible. Recent changes to Registered Disability Savings Plans (RDSP) now offer more flexibility in rolling RRSP and RRIF/RPP plans into a RDSP on the death of the parent.

There are many things to consider as a child with a disability ages. It is important to consider them when both the parents and the adult child are young enough to put future plans in place.

[This article was originally published in the October 2014 edition of Fifty-Five Plus Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.