What happens if there is no power of attorney in Ontario

Maybe your mom has started missing bills, or a bank has called about strange withdrawals from your dad's account. Then you find out the hard part: there's no power of attorney. Nobody has the legal right to step in, even though you're family and you're the one paying attention.^1,2

Ontario has a process for this, and families get through it. It takes paperwork, some money and some time, so it helps to know the routes before you start.

This guide is for adult children in Ontario whose parent can no longer manage their money and never made a continuing power of attorney for property. It covers what to check first, the two ways to become your parent's guardian of property, what each one costs, and what happens if the Office of the Public Guardian and Trustee (OPGT) ends up managing your parent's money.

What happens if there is no power of attorney in Ontario?

Ontario's Substitute Decisions Act sets out who can make decisions for an adult who is mentally incapable. For money and property, that's an attorney named in a power of attorney, or a guardian of property.¹ A guardian is someone appointed after a person has become incapable, usually because they never made a power of attorney.² Being next of kin isn't on that list, so a spouse or adult child can't take over a parent's finances just because they're family.

A guardian of property can be appointed in two ways: by the OPGT or by the Ontario Superior Court of Justice.¹ Once appointed, a guardian can do almost anything with the money your parent could have done, like opening and closing accounts, redirecting pensions, applying for benefits and paying bills.¹ A guardian can't make or change your parent's will, and has no say over personal decisions like health care or where your parent lives.² A guardian also can't sell property that your parent's will leaves to a specific person, with some exceptions.¹

First, check two things

Is there really no power of attorney?

Many people sign a power of attorney and then forget to mention it. Look through your parent's papers and any safety deposit box, and ask the lawyer who did their will or bought their house. It's worth the effort: if a valid continuing power of attorney turns up later, it can end a guardianship by the OPGT. The attorney gives the OPGT the original or a copy it accepts, a signed promise to act under the document, and any other proof the OPGT asks for.^3,4

If you find one, our guide on using a power of attorney at the bank walks through putting it to work.

Could your parent still sign one?

For most people, having a power of attorney means no guardian is needed, and it lets your parent choose who acts for them. A guardian might not be the person your parent would have chosen.¹ Ontario's test for being able to sign a continuing power of attorney isn't the same as the test for managing money. Your parent needs to understand things like what property they have and roughly what it's worth, that the attorney will be able to act for them, that the attorney must account for what they do, and that an attorney could misuse the power.³

A power of attorney is valid if your parent was capable of making it when they signed, even if they were already incapable of managing their property.³ So a diagnosis like dementia doesn't automatically close this door. Ontario offers a free kit for making a power of attorney, and a capacity assessor can assess whether your parent is able to sign one.⁵ A lawyer can advise you on this too.

The two routes to guardianship, side by side

People who aren't relatives must go to court.⁴ That can include stepchildren. A relationship created by marriage ends when the marriage ends, including when a spouse passes away. For example, if your dad has passed away and your stepmother is now incapable, you're no longer related to her for an OPGT application, although you can still apply to court.⁸

Which route usually applies

Route 1, step by step: through the OPGT

1. Find a capacity assessor. Capacity assessors are doctors, nurses, psychologists, social workers or occupational therapists who have passed a training course from Ontario's Capacity Assessment Office. Ontario publishes a list. Contact assessors directly and ask about their availability, fees and areas of expertise.⁵
2. Say exactly what you need. Explain that you want an assessment of your parent's ability to manage property, for the purpose of deciding whether the Public Guardian and Trustee should become their statutory guardian.^3,5
3. Fill in the Request for a Capacity Assessment form and give it to the assessor.⁵ On it, you confirm that you have reason to believe your parent may be incapable of managing property, that you've made reasonable inquiries and don't know of a continuing power of attorney covering all their property, and that you don't know of a spouse, partner or relative who plans to apply to court instead.³
4. Arrange payment. Assessors set their own hourly or flat rates, and the person who asks for the assessment usually pays.⁵ If the OPGT is appointed and your parent can afford it, you may be paid back from your parent's money.⁴ If you can't afford the fee, you can apply to the Capacity Assessment Office for financial assistance, and it will tell you the status of your application within 10 business days.⁵ It's for people with low income, and it isn't available if the person is likely to refuse the assessment.⁹
5. The assessment. Your parent can refuse. If they do, this route can't be used.^5,4
6. If your parent is found incapable, the assessor issues a certificate of incapacity, and the OPGT becomes their statutory guardian of property as soon as it receives it.³ The OPGT usually has no advance notice.⁴ Your parent must be told that the OPGT is now their guardian and that they can ask the Consent and Capacity Board to review the finding.³
7. Apply to replace the OPGT (next section).

Applying to replace the OPGT

The application has two parts: the Application to Replace the Public Guardian and Trustee as Statutory Guardian of Property (Form 1), and a Management Plan (Form 2) that explains how you'll manage your parent's property.^3,1 Both forms are on Ontario's guardianship page.¹ The OPGT appoints you if it's satisfied that you're suitable and your plan is appropriate. It considers your parent's current wishes, if they can be known, and how close your relationship is.³ You must be at least 18.²

The OPGT's own tips for avoiding delays:⁸

• Type or clearly print. Forms in pencil, or photocopies, are sent back.
• Fill in every section. Write "none" or "not applicable" instead of drawing a line through a section.
• List your parent's close relatives who are 18 or older, such as their spouse, children, brothers and sisters, and say whether each one supports or opposes your application. The OPGT may contact them, including to ask why someone opposes it.
• Applying with a sibling? You can apply jointly. Mark it clearly, and both of you sign both forms.
• Don't pay the fee in advance. The $382 review fee is charged only once the OPGT approves you and issues its certificate, and it's usually paid from your parent's money. You can ask in writing for it to be waived, for example if your parent's income and assets are very small.^8,6,7 HST is added.⁶

If your parent's assets are over $200,000, the OPGT's fee schedule also lists a $150 fee for reviewing the management plan.⁷

The management plan has a section for each of these.⁸ If you don't know the details of your parent's finances, ask the OPGT representative handling your parent's file. If the OPGT doesn't have the information yet, the representative should be able to get it.⁸ If you plan to sell something, such as the house, the plan must say how the money from the sale will be used.⁸

The surety bond: a common surprise

The OPGT can refuse to appoint you unless you provide security, in an amount it sets.³ In practice, that's often a surety bond, a kind of insurance that protects your parent's money from theft or fraud. The premiums come from your parent's money.^2,8

Bonds are sold by private insurance companies, not by the government, and approval isn't guaranteed. The OPGT warns that bond companies often want the applicant to have a net worth similar to the parent's.⁸ An adult child with a modest income applying to manage a parent's $400,000 house and savings could have trouble qualifying. The OPGT suggests contacting bond companies early to ask what they look for.⁸

A few other things to know:⁸

• Spouses are usually exempt if they swear an affidavit about potential family law claims, unless the spouse's own assets are over $250,000, or $500,000 including real estate.
• Applicants who live outside Ontario will almost always need a bond, whatever the value of the parent's assets.

If a bond is a problem, a court can order that security be dispensed with or provided another way.³ That takes a court application, so talk to a lawyer.

Route 2: applying to court

Anyone can apply to the Ontario Superior Court of Justice to be appointed guardian of property, even when the OPGT is already the statutory guardian.³ Ontario recommends talking to a lawyer if you're considering it.¹ Court applications follow the court's rules and the Substitute Decisions Act, and the time they take depends on the court's schedule and how complicated the case is.²

A few things shape a court application:

• The court must look for a less restrictive option first. A judge won't appoint a guardian if your parent's needs can be met another way that doesn't require finding them incapable and that limits their decision-making rights less.³
• It can often be decided on paper. If the application includes two statements saying your parent is incapable of managing property, one from a capacity assessor and the other from an assessor or someone who has been in personal contact with your parent in the past 12 months, it can be handled without a full hearing.³
• The OPGT reviews every application. It must be named as a party in every private guardianship application, and its fee for reviewing one is $250.^6,7
• You'll need a management plan here too. You must follow it once you're appointed.¹
• Legal fees. If the application succeeds, the guardian is usually allowed to pay the legal fees from your parent's money.² Ask your lawyer which costs you might have to pay yourself.

If your parent's only income is CPP and OAS

If your parent has no income or assets other than government benefits like Old Age Security (OAS), the Canada Pension Plan (CPP) or ODSP, guardianship may not be needed.⁴ Those programs can appoint a family member as a "trustee" to manage just that income.^2,4 For OAS and CPP, a medical professional completes a Certificate of Incapability (ISP-3505), and you complete an Agreement to Administer Benefits by a Private Trustee (ISP-3506).¹⁰

A trusteeship only covers those benefits. It isn't enough if your parent has other income, savings, property or legal matters to deal with.²

If your parent is assessed in a psychiatric facility

There's a third way the OPGT can become guardian. When someone is admitted as a patient to a psychiatric facility, a doctor must examine them right away to decide whether they can manage their property. If the doctor finds they can't, and they have no guardian or continuing power of attorney for their property, the doctor issues a certificate of incapacity and the OPGT becomes their guardian.^2,4,11 A family member can then apply to replace the OPGT, the same way as in Route 1.²

What happens while the OPGT is your parent's guardian

The OPGT is the guardian of last resort, and it encourages family to take over where possible.⁴ Until someone does, here's what to expect:⁴

• It takes over all of your parent's finances. It can't manage only part and leave the rest to family.
• It gathers information. An investigator usually visits your parent's home to look for bank statements, tax returns, insurance policies and a will, lists belongings and secures valuables. Mail is usually redirected to the OPGT for a while.
• Income goes to the OPGT. In most cases, all income owed to your parent is redirected to the OPGT, which pays bills directly and gives your parent spending money.
• Family needs approval first. If you spend your own money on your parent and want to be paid back, the OPGT has to approve the expense first, and you'll need receipts.
• Don't file your parent's tax return. The OPGT files it. Anyone else thinking of doing this needs the OPGT's permission first, to avoid duplicate returns.
• The house and investments may change. If your parent can't afford to keep an asset or no longer needs it, it's usually sold, although family willing to pay the upkeep are usually allowed to keep it. The OPGT talks to your parent, if possible, and involved family before selling something major like a house. Investments are reviewed and may be moved into the OPGT's own funds.
• Belongings are handled with care. Things of sentimental value, like photos, are stored if your parent can't keep them and can afford the storage. Items no one wants are usually sold at auction.
• It's still your parent's money. The OPGT manages the property, but it never owns it.

What the OPGT's fees could cost: an example

The OPGT charges the same rates any guardian of property in Ontario is allowed to charge: 3% of money received, 3% of money paid out, and 0.6% a year of the value of the property.⁶ HST is added.⁶ Here's how that works out for a made-up parent, using those rates:

Extra services, like legal work, property management and tax returns, are charged separately.⁶ The OPGT can reduce or waive fees in cases of hardship.⁶ A family member who becomes guardian is allowed to charge the same rates.²

Once you're the guardian

The duties and powers of a guardian are essentially the same as an attorney's. The main difference is how you were appointed.² As guardian, you must:

• Act in your parent's best interest, managing their money in a way that gives them the best quality of life possible.^1,2
• Involve your parent in decisions as much as they can manage, and consult supportive family and friends.^1,2
• Follow your management plan.¹ A court-appointed guardian can change the plan with the OPGT's consent, without going back to court, for a $50 fee.⁶
• Keep your parent's money separate from yours, and write down every transaction.²
• Keep records the way Ontario's regulation requires, along with your certificate or court order and a copy of your management plan.^12,13

The record-keeping rules for guardians are the same ones attorneys follow,^12,13 so our free POA money tracker works for a guardian too. It has tabs for accounts, money in and out, bills, property and debts, and it works out the standard pay.

You can be paid for the work at the same 3%, 3% and 0.6% rates.² Taking more needs written consent from the OPGT, and from your parent's guardian of the person or attorney for personal care, if they have one.¹² A court can review your accounts and adjust what you've taken.¹²

A guardianship through the OPGT ends if your parent is reassessed as capable, the Consent and Capacity Board overturns the finding, or your parent passes away.² If you resign, pass away or become incapable, the OPGT can step back in as your parent's guardian until someone else is appointed.³ Your authority stops when your parent passes away. The estate trustee named in their will takes over the estate.²

What about health care decisions?

This guide is about money. Personal care decisions, like health care and housing, are separate.^1,14 For health care, and for moving into a long-term care home, Ontario's Health Care Consent Act lets certain people, including spouses, parents and other relatives, decide for someone who is incapable without going to court.¹ When no one is available, or decision-makers disagree, the OPGT makes the decision.⁵

If your parent is at risk right now

If your parent is in crisis, go to the nearest emergency department or call 911.⁵ If mental incapacity is putting them at serious risk, for example through severe self-neglect or financial exploitation, contact the OPGT. It may investigate when no other solution is available, and in some cases it can ask a court for authority to act.¹ It has no authority to make decisions for your parent while it investigates, or while the matter is before the courts.⁵

Questions to ask

What to do next

If your parent can still sign a power of attorney, that's usually the simplest path, and the place to start is a lawyer or a capacity assessor. If not, choose your route, gather the information for the management plan, and contact bond companies early. Once you're appointed, our guide on your duties as power of attorney for property covers the day-to-day work of managing a parent's money, which is much the same for a guardian.