What Happens if I Lose Capacity but I Don’t Have a Power of Attorney?

By James Russell

While most of us realize the importance of a Will to provide instructions to our family on what should happen after we pass away, and who should be responsible for managing our estate, one aspect of “Estate Planning” that often gets overlooked is planning for mental incapacity. Whether resulting from illness, injury, or an age-related condition, it is crucial to understand the implications that losing capacity can have on you and your loved ones.

A Power of Attorney and Personal Care Directive are documents that can be used to grant power to individuals you trust, so that they can make financial and health-related decisions on your behalf. This is particularly important in the event that you lose capacity. If you lose capacity, and have not implemented a Power of Attorney and Personal Care Directive, your family members may be left wondering how your bills will be paid, or how your assets can be sold, if necessary.

In Nova Scotia, the law presumes that every adult has legal capacity, which simply means the ability to understand and appreciate the nature and consequences of decisions. This means the law presumes that every adult can manage their finances, pay bills, and to do whatever else is necessary to maintain their property. So, what happens if an adult doesn’t have the ability to manage their affairs and lacks the legal capacity to appoint a person to take on these responsibilities?

The Adult Capacity and Decision-making Act (ACDMA) allows an individual to apply to the Nova Scotia Supreme Court to be appointed as the legal representative of an adult who is unable to make decisions for themselves. Under this process, the judge must be satisfied that the person needs assistance and that there is no less restrictive way for their affairs to be managed. To satisfy the Court, the person seeking to be appointed must demonstrate that the individual lacks the ability to care for themselves and lay out a clear plan as to how they intend to care for the person. Notice of the application also must be given to certain family members and caretakers, a capacity assessment must be completed by an approved medical assessor, and the proposed representative must complete a Vulnerable Sector Check. Depending on the circumstances, additional documents may be required before the application is considered or approved by the judge. A Court hearing is set where the applicant or their lawyer is given an opportunity to make oral submissions in support of the application they are seeking the judge to approve, which could be opposed by the adult, their family members, or other interested parties.

Once the application is completed, if successful, the judge makes an order that the person lacks the ability to manage their own affairs and appoints a legal representative to manage these matters. That person will have additional conditions placed on them that they must adhere to while they act as the adult’s legal representative, including keeping track of finances, and reporting to the Court if there is a substantial change in circumstances affecting the adult.

Losing capacity without a legal plan in place can result in a lot of uncertainty and stress for you and your family members. Also, an application brought under the ACDMA can be quite costly – far more than a person would incur by executing a Power of Attorney and Personal Care Directives in advance. It is highly recommended that you plan for the possibility of mental incapacity while you have the ability to do so. If you have a loved-one who is found, however, in a situation where they cannot care for themself, and lack the legal capacity to enter into a Power of Attorney and Personal Care Directive, the ACDMA provides a process where someone can be appointed to manage their affairs.

Consult with a lawyer if you are looking to discuss your own estate planning, or to discuss whether an ACDMA application is appropriate in your loved-one’s circumstances.

This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.