Consent and Capacity Board Case Review – JL (Re)
JL (Re), 2025 CanLII 37122 (ON CCB)
At a recent case conference before the Consent and Capacity Board (“Board”) senior lawyer and presiding member Suzanne Clapp (“Ms. Clapp”) considered and applied section 54 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”) in the context of a psychiatric patient’s capacity to manage property having been assessed in the face of an existing Power of Attorney for Property (“POAP”).[1]
Pursuant to section 54(1) of the MHA, when a patient is admitted to a psychiatric facility, a physician shall examine them to determine whether they are capable of managing property on a forthwith basis.[2] If, as a result of the above-noted examination a determination is made that the patient is incapable of managing their property, they must be informed of said finding, receive rights advice, and be advised of their right to apply to the Board for a review of the finding. The Public Guardian and Trustee (“PGT”) becomes their statutory guardian of property.[3]
Notably however, section 54(6) of the MHA is clear that section 54 does not apply if
(a) the patient’s property is under guardianship under the Substitute Decisions Act, 1992; or
(b) the physician believes on reasonable grounds that the patient has a continuing power of attorney under that Act that provides for the management of the patient’s property.[4]
In JL (Re), the patient, JL, had his capacity to manage property assessed, was found to be incapable of same, and applied to the Board for a review of the finding. It was undisputed that JL had granted a POAP on or about March 20, 2018, and that the assessing physician was aware of same when the assessment was conducted. Further, there was no apparent dispute as to whether the POAP was intended to be a Continuing Power of Attorney for Property (“CPOAP”).[5]
In her Order of the Board Adjourning a Hearing dated April 15, 2025 (the “Order”), Ms. Clapp noted that
[a] continuing power of attorney for property typically comes into effect on the date that it is signed unless it provides otherwise. Subsection 7(7) of the SDA states that a continuing power of attorney for property may provide that it comes into effect on a specified date or when a specified contingency happens. If the continuing power of attorney for property states that it comes into effect when the grantor becomes incapable of managing property, but does not provide a method for determining whether that situation has arisen, subsection 9(3) of the SDA states when it comes into effect. Specifically, subsection 9(3)(b) states that it comes into effect when the attorney is notified that a certificate of incapacity has been issued in respect of the grantor under the MHA.[6]
Ms. Clapp goes on to note that the parties agreed that the POAP was not entirely clear as to whether a “triggering event” or finding of incapacity were required for it to come into effect.[7] Ms. Clapp concluded that it did not, and that it had taken effect upon signing. It was intended to be a CPOAP, the assessing physician knew about it at the time of the assessment, and no “triggering event” or incapacity finding was required. Ms. Clapp determined that the Form 21 – Certificate of Incapacity was therefore of no legal effect, and that the Board lacked the jurisdiction to hear JL’s Form 18 Application to Review a Finding of Incapacity to Manage Property.[8]
JL (Re) serves as an important reminder of the importance of CPOAPs and the peace of mind that a clearly worded CPOAP can bring. As Ms. Clapp aptly noted
[t]he significance of a continuing power of attorney for property is specifically so that the PGT does not take control of a person’s estate when they become incapable. Subsection 54(6) of the MHA is intended to preserve that intention and limit the authority of the physician and the PGT.[9]
. . . the purpose of the assessment required by section 54 of the MHA is to see if the PGT should become the statutory guardian of a person’s property. This is not applicable where there is a continuing power of attorney for property. The continuing power of attorney for property is governed by its terms, conditions and restrictions, as well as the SDA, and any issue with those provisions is within the jurisdiction of the courts.”[10]
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[1] JL (Re), 2025 CanLII 37122 (ON CCB) [“JL (Re)”]. at paras. 1, 3, 10-11.
[2] JL (Re), at para. 10; Mental Health Act, R.S.O. 1990, c. M.7 [“MHA”], s. 54(1). Notably, pursuant to s. 54(2) of the MHA, the examination can also take place at other times.
[3] MHA, ss. 54(3-5); 55-60.
[4] Ibid., s. 54(6); JL (Re), supra., at para. 10.
[5] JL (Re), supra., at paras. 1, 3, 11.
[6] Ibid., at para. 14.
[7] Ibid., at para. 15.
[8] Ibid., at paras. 17, 19.
[9] Ibid., at para. 17.
[10] Ibid., at para. 18.
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Written by: Joanna Weiss
Posted on: June 1, 2025
Categories: Commentary, WEL Newsletter
JL (Re), 2025 CanLII 37122 (ON CCB)
At a recent case conference before the Consent and Capacity Board (“Board”) senior lawyer and presiding member Suzanne Clapp (“Ms. Clapp”) considered and applied section 54 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”) in the context of a psychiatric patient’s capacity to manage property having been assessed in the face of an existing Power of Attorney for Property (“POAP”).[1]
Pursuant to section 54(1) of the MHA, when a patient is admitted to a psychiatric facility, a physician shall examine them to determine whether they are capable of managing property on a forthwith basis.[2] If, as a result of the above-noted examination a determination is made that the patient is incapable of managing their property, they must be informed of said finding, receive rights advice, and be advised of their right to apply to the Board for a review of the finding. The Public Guardian and Trustee (“PGT”) becomes their statutory guardian of property.[3]
Notably however, section 54(6) of the MHA is clear that section 54 does not apply if
(a) the patient’s property is under guardianship under the Substitute Decisions Act, 1992; or
(b) the physician believes on reasonable grounds that the patient has a continuing power of attorney under that Act that provides for the management of the patient’s property.[4]
In JL (Re), the patient, JL, had his capacity to manage property assessed, was found to be incapable of same, and applied to the Board for a review of the finding. It was undisputed that JL had granted a POAP on or about March 20, 2018, and that the assessing physician was aware of same when the assessment was conducted. Further, there was no apparent dispute as to whether the POAP was intended to be a Continuing Power of Attorney for Property (“CPOAP”).[5]
In her Order of the Board Adjourning a Hearing dated April 15, 2025 (the “Order”), Ms. Clapp noted that
[a] continuing power of attorney for property typically comes into effect on the date that it is signed unless it provides otherwise. Subsection 7(7) of the SDA states that a continuing power of attorney for property may provide that it comes into effect on a specified date or when a specified contingency happens. If the continuing power of attorney for property states that it comes into effect when the grantor becomes incapable of managing property, but does not provide a method for determining whether that situation has arisen, subsection 9(3) of the SDA states when it comes into effect. Specifically, subsection 9(3)(b) states that it comes into effect when the attorney is notified that a certificate of incapacity has been issued in respect of the grantor under the MHA.[6]
Ms. Clapp goes on to note that the parties agreed that the POAP was not entirely clear as to whether a “triggering event” or finding of incapacity were required for it to come into effect.[7] Ms. Clapp concluded that it did not, and that it had taken effect upon signing. It was intended to be a CPOAP, the assessing physician knew about it at the time of the assessment, and no “triggering event” or incapacity finding was required. Ms. Clapp determined that the Form 21 – Certificate of Incapacity was therefore of no legal effect, and that the Board lacked the jurisdiction to hear JL’s Form 18 Application to Review a Finding of Incapacity to Manage Property.[8]
JL (Re) serves as an important reminder of the importance of CPOAPs and the peace of mind that a clearly worded CPOAP can bring. As Ms. Clapp aptly noted
[t]he significance of a continuing power of attorney for property is specifically so that the PGT does not take control of a person’s estate when they become incapable. Subsection 54(6) of the MHA is intended to preserve that intention and limit the authority of the physician and the PGT.[9]
. . . the purpose of the assessment required by section 54 of the MHA is to see if the PGT should become the statutory guardian of a person’s property. This is not applicable where there is a continuing power of attorney for property. The continuing power of attorney for property is governed by its terms, conditions and restrictions, as well as the SDA, and any issue with those provisions is within the jurisdiction of the courts.”[10]
—
[1] JL (Re), 2025 CanLII 37122 (ON CCB) [“JL (Re)”]. at paras. 1, 3, 10-11.
[2] JL (Re), at para. 10; Mental Health Act, R.S.O. 1990, c. M.7 [“MHA”], s. 54(1). Notably, pursuant to s. 54(2) of the MHA, the examination can also take place at other times.
[3] MHA, ss. 54(3-5); 55-60.
[4] Ibid., s. 54(6); JL (Re), supra., at para. 10.
[5] JL (Re), supra., at paras. 1, 3, 11.
[6] Ibid., at para. 14.
[7] Ibid., at para. 15.
[8] Ibid., at paras. 17, 19.
[9] Ibid., at para. 17.
[10] Ibid., at para. 18.
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