Can someone with dementia sign a power of attorney in Ontario?

Sometimes. What matters is whether they have the capacity to sign at that moment, meaning they can understand the information relevant to the decision and appreciate its foreseeable consequences. A diagnosis alone doesn't decide it, and capacity can vary from day to day.

What if my parent has already lost capacity?

Then they cannot sign a new power of attorney. A family member may need to apply to be appointed guardian. For property there is also a statutory guardianship process after a capacity assessment; for personal care a guardian must be appointed by the court. These take longer and cost more, so speak to a lawyer early.

Do I need two separate documents?

Ontario has two main documents: a continuing power of attorney for property (money and assets) and a power of attorney for personal care (health and care decisions). Many people sign both.

Power of Attorney for a Parent With Dementia in Ontario

Q: Who can't witness a power of attorney in Ontario?

The attorney and their spouse or partner; the spouse, partner or child of the person making the document (or someone they treat as their child); a person whose property is under guardianship or who has a guardian of the person; and anyone under 18. Two witnesses must be present together when the person signs.

If your parent is starting to forget things, you may wonder whether it is already too late to put a power of attorney in place. Often it is not. But the window can close, and it closes quietly. Here is how it works in Ontario.

Two documents, two jobs

Continuing power of attorney for property lets someone you trust manage your money, pay bills and deal with your home if you cannot. It can be used while you are incapable, if it says so.
Power of attorney for personal care lets someone make health care, housing and personal care decisions for you when you cannot make them yourself.

A diagnosis is not the same as incapacity

Many families assume that a dementia diagnosis means a parent can no longer sign anything. That is not the legal test. Under Ontario's Substitute Decisions Act, incapacity means a person is unable to understand information relevant to making a decision, or unable to appreciate the reasonably foreseeable consequences of making it or not making it. The question is whether your parent can do that for this particular document, at the time they sign it. For a continuing power of attorney for property, the Act is specific. The person must know what kind of property they have and roughly what it is worth, and be aware of any obligations they owe to dependants. They must know that the attorney can do anything with their property that they could do themselves (except make a will), that the attorney must account for what they do, and that they can cancel the document while they are capable. They must also appreciate that the property's value could fall if the attorney doesn't manage it prudently, and that an attorney could misuse the authority.

Capacity can change from day to day and from task to task. A parent with early dementia may be able to choose an attorney on a good day, even if they can no longer manage a complex investment. A lawyer will meet them, ask questions in plain language, and decide whether it is appropriate to go ahead. In some cases the lawyer may recommend a medical capacity assessment first. The person chosen as attorney must be at least 18.

Who can witness

Both documents must be signed in front of two witnesses who are present together when the person signs. Ontario's official power of attorney kit lists who cannot witness: the attorney and their spouse or partner; the spouse, partner or child of the person making the document (or someone they treat as their child); a person whose property is under guardianship or who has a guardian of the person; and anyone under 18. A family member who is also the named attorney should therefore not be in the room as a witness. If these rules aren't followed, a continuing power of attorney is not effective, although a court can be asked to declare it effective. That is a common problem with homemade forms. Signing by video can be possible, but the government kit says it requires a lawyer or paralegal to take part.

If it is already too late

If your parent no longer has capacity, nobody can sign a power of attorney for them. As the Ontario government's kit explains, a family member or friend may then have to apply to be appointed as guardian. For property, there is also a statutory guardianship process that can follow a capacity assessment, without going to court. For personal care there is no statutory guardianship, and a guardian of the person must be appointed by the court. These routes take longer and cost more than a power of attorney, and involve oversight and reporting. That is why we encourage families to act while a parent can still understand and sign.

What to do now

Talk to your parent early, while they can still explain who they trust.
Choose an attorney, and a backup, who is willing and able. It does not have to be the oldest child.
Book a meeting with a lawyer who will meet your parent on their own, not only the family.
Keep the original documents safe and tell the attorney where they are.

Our power of attorney page explains the process and our fees, and the free checklist helps you prepare. You can call us at (289) 652-0529. We meet families in English, Urdu, Hindi and Punjabi. The page is also in Urdu at /ur/power-of-attorney.

DISCLAIMER: This article is general information about Ontario law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.

Power of Attorney for a Parent With Dementia in Ontario: What If They Can't Sign?