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A recent article in the London Free Press discussed the difficulty a local woman is experiencing in attempting to deposit a settlement cheque issued on behalf of her incapable brother.

The article refers to a process whereby the individual would not have to become her brother’s official guardian for property, but could instead be appointed by a local tribunal within a matter of weeks in order to have the authority to negotiate the cheque on his behalf.

However, from further investigation it appears that the local tribunal referred to in the article is the Consent and Capacity Board. The Consent and Capacity Board is created by the Health Care Consent Act to conduct certain hearings under the Mental Health Act, the Health Care Consent Act, the Personal Health Information Protection Act, the Substitute Decisions Act and the Mandatory Blood Testing Act. Applications to the Consent and Capacity Board deal mainly with health care treatment decisions.

The Consent and Capacity Board does not have the authority to appoint someone as an incapable person’s guardian of property, or to provide limited authorization to a person to take certain steps on an incapable person’s behalf with respect to their property. With respect to an incapable person’s property, the Consent and Capacity Board deals only with appeals from an assessor’s finding that the person is incapable of managing property.

The ability for an individual to make decisions on another’s behalf with respect to their property is governed solely by the Substitute Decisions Act.

Under the Substitute Decisions Act, a person who wishes to be appointed as the guardian of property for an incapable person must either apply to the Public Guardian and Trustee (“PGT”) to replace the PGT if the PGT has already taken over property management, or must apply to the court to be appointed as the guardian of property.

The Substitute Decisions Act sets out the procedures to be followed in such an application. Each court application is also reviewed and commented on by the PGT’s office in their role as protectors of incapable persons in Ontario. The Substitute Decisions Act was designed to protect vulnerable individuals by putting certain procedures and safeguards in place to ensure that an appropriate person is appointed as guardian for property. Depending on the complexity of the incapable person’s assets, and the time required to properly complete an application, the process can be costly and time consuming.

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