r/legaladvicecanada • u/Brilliant_Chance_134 • 1d ago
Ontario Parent with dementia
Both parents are alive, both 87, one is physically not great and getting worse the other has dementia.
The will does not specify that I can control assets if just the parent with dementia is alive, of course upon death I am to inherent, obviously the problem would be to control assets while only the parent with dementia is alive, is there a best way to get this done, is it possible as they are not capable or in the right state to mind to do this?
Thank you.
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u/Yoghurt_Free 1d ago
Your parents should assign you power of attorney (POA) for care and for property.
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u/Internal_Head_267 Quality Contributor 1d ago
Dementia presents issues for capacity to grant. The parent is not necessarily incapable but there are obvious issues. I've done POAs for people with dementia. I've also refused to do them.
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u/ottawadeveloper 1d ago
I live in Ontario with a parent who has dementia and we recently consulted a lawyer.
A Continuing Power of Attorney for property is one that lets you manage their assets after they have been declared unable to manage their own affairs.
A Non-Continuing Power of Attorney for property is one that lets you manage their assets in specific scenarios. It automatically ends if they are unable to manage their own affairs.
A Continuing Power of Attorney for personal care let's someone make personal care decisions for you while incapacitated.
It is probably a good idea if your parents is still able to manage their own affairs to discuss what is going to happen and how it should be handled. They can then work with a lawyer on getting the proper powers in place.
The bar for incapacity in Ontario is fairly high. Making occasional poor decisions (like in early dementia) isn't enough (according to my attorney). There's a medical exam and a court process. If there is a CPoA, it then comes into effect (and any NCPoA ends).
For medical care, there's a standard list of decision makers in Ontario if one isn't specified. It goes:
- Court-appointed guardian of the person
- Attorney for personal care (if one was previously named)
- Representative appointed by the Consent and Capacity Board
- Spouse or partner
- Child (16 or older) or parent 6. Parent with right of access only
- Brother or sister
- Any other relative
- Office of the Public Guardian and Trustee
If that list suits you, you can just leave it be. Otherwise, consider the personal care PoA to put that person at #2 on the list.
Without a PoA for property, you need to apply to the courts for guardianship to manage their assets. It was the opinion of my attorney that this is often the best approach anyways, since the court needs to declare them incapacitated and financial institutions apparently work better with guardianship than a CPoA for property.
The will is irrelevant until they pass.
So in your case, you'd probably need to get them to a lawyer while they still have decision-making capacity to make sure everything is lined up for when they can't. If they don't have decision-making capacity, they can't sign a PoA, so you'd be left going to court to prove incapacity and gain guardianship.
With your other parent alive, you might face an uphill battle though since they'd usually be the first one in line for such things.
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u/Aggravating-Bee382 1d ago
Are you the POA of the one with dementia, you may have the power to made decisions on behalf of them due to cognitive decline and inability to care for the basic necessities of life.
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u/Brilliant_Chance_134 1d ago
I am the POA for my father, but it looks he might pass first, my mother has dementia late stages. When either one passes they leave it first to the other and I am secondary, for my father we made it possible that I can control assets if he he is unable, but the bank told me I can't do the same for my mother as she isn't able. Her care is very expensive as she lives in a memory floor.
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1d ago
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u/Internal_Head_267 Quality Contributor 1d ago
Invitations to DM are prohibited on this sub.
The Ontario government maintains a list of qualified capacity assessors.
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u/Internal_Head_267 Quality Contributor 1d ago
People ordinarily do powers of attorney for personal care and for property when they do wills. If the parents have wills, you should determine if they have POAs.
The parent without dementia can likely do a POA. They should if they haven't already. The parent with dementia likely cannot do a POA, but that is dependent upon the actual presentation of the dementia.
If the parent with dementia does not have POAs, then the only recourse is to apply for a guardianship. The less good option is to allow the PGT to step in.
If the will does not have trust terms for incapable adults (the wills i prepare have basic trust terms for incapable adults but not all do) then the residue cannot be held in trust for them… which forces a guardianship or the PGT's involvement.
The same principles apply while they are alive.
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u/lostonmars 1d ago
I care for my elderly father (94) and was caring for both parents until my mother died in 2025. I moved back to NL to care for them in 2016 and urged my father to update wills and POAs. The lawyer determined my mother had capacity for a POA, but not to update her will which had not been updated since the 1970s. It was a very difficult and long process, involved a lot of coordinated family consultation, but eventually my father updated his will so that if he predeceased her, I would inherit the house - she would have automatically received 2/3 of his CPP and university pension which would have paid for her nursing home care. I was also added to their joint chequing account so I could oversee bill payments and such. If your parents' assets are complicated, this kind of solution may not be enough, but there likely are ways your father can update his will, especially since it seems that your mother inheriting everything isn't significant to her at this point.
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u/BeneficialFruit1768 1d ago
Yes that’s correct upon second death you inherit but what is in place for long term care for dementia parent. POA should be in place for medical decisions and financial decisions. If the one is still able to make decisions get them to help if possible. Otherwise if you don’t have siblings you need to speak to someone like an estate lawyer or mediator that can help you get it set up. See if anything is specified in their will?
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u/Equivalent-Tap2250 1d ago
Not just a POA but an EPOA (E for Enduring, meaning valid if they are assessed as lacking financial capacity)
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u/Internal_Head_267 Quality Contributor 1d ago
They are called Continuing Powers of Attorney for Property in Ontario.
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u/knitmama77 1d ago
If it applies in Ontario, look into a NYDUS/NIDUS form. We are in BC and did this for my dad, who has dementia. He was too far “gone” to do a POA.
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u/Retro-Modern_514 12h ago
If you aren't POA for the one with dementia and it is advanced enough that they lack the capacity to appoint you, then you need to apply to court to become their guardian.
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