Guardianship & Capacity in Ontario

What Is Legal Capacity?

A person has capacity if they are able to understand information relevant to a decision and appreciate the consequences of a decision or lack of decision. Capacity is decision-specific — a person may have capacity for some decisions but not others.

Key Ontario Legislation

• Health Care Consent Act (HCCA) — Governs consent to medical treatment and personal care decisions
• Substitute Decisions Act (SDA) — Governs powers of attorney and guardianship for property and personal care
• Mental Health Act — Governs psychiatric treatment and involuntary admission

Hierarchy of Substitute Decision Makers (SDMs)

If a person lacks capacity to make healthcare decisions and has no valid Power of Attorney for Personal Care, the HCCA establishes this order of SDMs:

1. Guardian of the person
2. Attorney for personal care (under a Power of Attorney)
3. Representative appointed by the Consent and Capacity Board
4. Spouse or partner
5. Child or parent
6. Sibling
7. Any other relative
8. Office of the Public Guardian and Trustee (OPGT)

Guardianship of Property

If a person lacks capacity to manage their finances and has no valid continuing Power of Attorney for Property, the court can appoint a Guardian of Property. This is an expensive and time-consuming court process — a strong reason to have a Power of Attorney in place while you have capacity.

The Consent and Capacity Board (CCB)

The CCB is an independent tribunal that reviews capacity determinations and disputes about substitute decision-making. Hearings are conducted quickly — often within 7 days when a person's liberty is at stake.

Challenging a Capacity Finding

If you believe a capacity finding is wrong, you can:

• Request a review by the Consent and Capacity Board
• Obtain an independent capacity assessment from a Health Care Practitioner
• Appeal a CCB decision to the Superior Court of Justice