May 11, 2018

By: Jennifer Foster

When I worked in the mental health sector, capacity planning meant setting out health care instructions in advance for a substitute decision maker called upon during periods of episodic illness—usually in relation to young adults.

Estate planning involves similar considerations with two main differences: first, capacity planning in these circumstances recognizes that the potential for incapacity is not episodic but probably permanent; and, second, that incapacity planning will involve not only decision making related to treatment of illness, but also financial and long term care decisions.

The principles and the legislation are certainly the same; however, the landscape is very different.

Planning for (in)capacity in our later years is important in order to ensure that our dependents are taken care of, our family and other beneficiaries receive our intended gifts, and, most importantly, to ensure that we are able to live out our final years in the comfort and lifestyle we have imagined for ourselves.

A power of attorney—for property and for personal care—allows us to choose a person or persons to make our most important decisions and safeguard our personal wishes in the event that we become unable to do so for ourselves. The caveat is that we must execute these documents while we are mentally capable of doing so. While the legal and medical thresholds for capacity to give this power are lower than the legal and mental tests for actually making these decisions, a certain level of cognitive function is still required. Once capacity falls below this threshold, we can be at the mercy of the courts and other “strangers” in terms of provisions of our basic needs.

The take home message here is to ensure that you have in place valid and up to date powers of attorney that reflect your wishes by iterating how your medial and financial affairs are to be handled throughout your lifespan.

Please feel free to contact us with your questions related to consent, capacity, and estate planning. We service clients from Kingston to Toronto and everywhere in between. And Ottawa, :)

Thank you for reading!