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Disability Planning

Service Summary:

  • Powers of Attorney
  • Advance Directives
  • Guardianship Appointments
  • Trusts

There are many kinds of disability: some you can see and some you cannot. Also, certain types affect mobility but not necessarily mental capacity. As a result, it is important to look at both the physical and mental aspects of disability at the planning stage. The other consideration is whether the planning is for you or a loved one. When done for yourself, the process is sometimes called incapacity planning, and when it is for someone else it is disability planning.

A person who meets the applicable tests for legal capacity to do things like Wills or powers of attorney can take charge of their own planning for potential incapacity. Since even a temporary problem can have significant consequences legally and financially, it is best to conduct this sort of planning in conjunction with a financial advisor who specializes in disability planning including various forms of insurance like critical illness and long term care. Consultation with a tax lawyer or accountant may also be beneficial.

Sometimes it is necessary to make plans on behalf of another person such as a child or spouse who has lost capacity to do their own planning. You cannot make a Will or power of attorney for another person, even if they have lost capacity, but there are still options. If it is necessary to manage their financial affairs or personal care, guardianship appointment is one possibility. Alternatively, trusts can be set up now or on your death to provide financing to assist the person. However, this needs to be done carefully to avoid accidentally compromising the person's benefit claims such as ODSP. RDSPs can be an important source of financing for persons with disabilities and there can also be tax credits that need to be considered. Therefore, it is wise to work with financial advisors and accountants who are familiar with these issues.

Guardianship appointments are sort of like a court ordered form of power of attorney but more restrictive. Unlike most powers of attorney which tend to be fairly broad in terms of the authority they grant to the substitute decision maker (the "attorney"), guardianship orders incorporate the management plans for property and personal care that have been filed with the application and approved by the Public Guardian and Trustee. These management plans must be followed and cannot be changed without further court approval.

Another key point to remember is that guardianship orders involve a finding of incapacity with respect to finances or care or both. The orders are generally expected to be permanent although a person who has been declared incapable can apply to court to have the order removed by providing satisfactory proof of capacity. Taking permanent responsibility for another person is a serious decision and the courts treat it as such.

Due to the significance of guardianship appointments, the form of application is quite detailed and it is legally mandated. This means you cannot just file any form of plan. It is important to have a carefully thought out financial and care plan for the incapable person developed in consultation with appropriately qualified lawyers, financial advisors and accountants, but these plans then have to be distilled down into the correct legal formalities before submission to court. The Public Guardian and Trustee's office carefully reviews guardianship applications and can request changes before they will agree to let it go to court unchallenged. Without agreement, legal counsel for the applicant and counsel for the PGT will have to go to court to ask a judge to decide the disputed issues. Also, family or other persons connected to the incapable person can challenge the application. All of this can take time to resolve so it is best to plan anywhere from 3 months to a year to get a guardianship application approved.

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