Capacity is Presumed for EVERY Adult! POA’s only make decisions where there is EVIDENCE of incapacity!

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There are 91 sections in the Substitute Decisions Act, 1992. If you can only remember one, then please remember the very beginning!

Presumption of capacity

(1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.  1992, c. 30, s. 2 (1).

Same

(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.  1992, c. 30, s. 2 (2).

Exception

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.  1992, c. 30, s. 2 (3).

Please remember – A POA is ONLY allowed to make a decision IF there is time and decision specific evidence that the person lacks mental capacity to understand or appreciate the decision at hand. Every adult, including seniors, adults with disabilities or those living with mental health issues – every adult – is presumed to be capable of making their own decisions! Do not violate any person’s rights by skipping directly to a POA. Evidence of incapacity must be documented and communicated.

“Don’t worry – the Power of Dad still trumps the Power of Attorney.”

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