For individuals under the age of majority (18 in Saskatchewan), decisions can be made by a parent and/or legal guardian. Once an individual reaches the age of 18, they are presumed to have capacity to make decisions on their own.
For individuals with issues of capacity, that ability to make decisions can be impaired. A person lacks capacity if he or she cannot:
- understand information relevant to making a decision; and
- appreciate the reasonably foreseeable consequences of making, or not making, a decision.
A lack of capacity may arise for a host of reasons including, but not limited to, intellectual disability, mental illness, dementia, brain injury and addictions.
Even where an individual has medical or other conditions which may impact capacity, there may be less intrusive options to assist that individual with decision-making. For some individuals, obtaining guidance, information and assistance from family, friends, support providers and advocates may allow them to understand the information and the consequences of making a particular decision. If communication is a barrier to decision-making, various aids, such as using plain language, providing interpreters or sign language, or using assisting technologies may help an individual with the decision-making process.
There are various options for informal assistance with financial management for an individual. If finances are relatively simple, setting up direct deposits of income and direct payments of regular bills may be all the assistance that an individual might require to manage their finances.
If the individual receives funds from the Saskatchewan Assured Income for Disability (SAID) program, payments can be made directly to landlords and utility companies by the Ministry of Social Services. If that is not sufficient, an individual can have a friend, family member, community-based organization or advocate assist as a trustee. A trustee works with the individual to help them pay their bills and ensure their basic needs are met. More information about the SAID program and trusteeship can be found on the Saskatchewan Assured Income for Disability Program (SAID) webpage.
Similar private trusteeship arrangements are also available for Canada Pension Plan and Old Age Security payments. More information is available online through Service Canada at Old Age Security: Your application - Canada.ca
If an individual has or wishes to open a Registered Disability Savings Plan, a qualified family member may act as the holder of the plan on behalf of the individual. A qualified family member includes a spouse, common law partner, parent or sibling.
Where these less intrusive options are insufficient, consideration should be given as to whether the individual has sufficient capacity to grant a power of attorney or name a proxy under a health care directive. As capacity to complete these forms is both a medical and legal decision, consultation with both a lawyer and a doctor is recommended.
Further information about powers of attorney for adults can be found on the Powers of Attorney for Adults webpage.
Information about health care directives is available at Advance Care Planning on the Saskatchewan Health Authority website.
Where the individual lacks capacity to grant a power of attorney or health care directive and more formal assistance is required to make personal and/or property decisions, an application to the court to be appointed as guardian or co-decision-maker may be necessary.
In order to determine whether a court appointed adult guardian is necessary, the following questions should be considered:
- What kinds of decisions need to be made to meet the adult's personal and financial needs?
- Is the adult able to understand the information needed to make decisions?
- Does the adult understand the consequences of the decisions that he or she makes?
- Does the adult consistently make decisions that result in harm to his or her personal or financial welfare?
- Is the adult at risk of being taken advantage of?
- Can the adult look after his or her day to day needs such as dress, diet and personal care?
- Are the adult's living arrangements suitable for his or her needs?
- Is the adult able to give informed consent for health care treatment?
- What support does the adult have to assist in making appropriate decisions?
- What property does the adult have?
- What is the adult's source of income and can that income be managed in some other way? (i.e. Can payments from Saskatchewan Social Services, Old Age Security or Guaranteed Income Supplement be paid to a trustee?)
The capacity of the adult should be assessed. If an application is made to the court for guardianship or co-decision-making, at least two assessments will be required. The two assessments must be performed by qualified professionals such as a doctor, nurse, occupational or physical therapist, social worker, speech therapist or psychologist.
If the adult is receiving services from an agency such as home care or health services or they are in a long-term care residence, the person applying to be a guardian or co-decision-maker may be able to have someone from that agency make an assessment.
The person applying to be a guardian or co-decision-maker should take cues from the information in the assessments when considering what type of decision-making authority to request from the court and its scope. Does the adult need assistance with decision-making or someone to assume control of decision-making? Does the adult need assistance with decision-making or someone to assume control of decision-making in relation to personal matters, financial matters or both?