July 10, 2025
Having posted a recent article on Powers of Attorney, the question in the title arises.
When it comes to making decisions on behalf of someone who can no longer make them for themselves, two legal tools often come into play in Ontario: Power of Attorney and Guardianship. While both serve the purpose of protecting individuals who are mentally incapable, they are not the same—and the distinctions matter both legally and practically.
What Is a Power of Attorney?
As previously discussed, a Power of Attorney (POA) is a legal document that you create while you are mentally capable, giving someone you trust the authority to act on your behalf if you become incapable in the future. In Ontario, there are two main types:
- Power of Attorney for Property – allows someone to manage your financial affairs, such as banking, paying bills, or selling property.
- Power of Attorney for Personal Care – allows someone to make decisions about your health care, housing, and other aspects of personal life.
Key Features of POA:
- Created voluntarily by the person (the “grantor”).
- Can be customized (e.g., limited in scope or time).
- Does not require court approval.
- Can be revoked by the grantor if they remain mentally capable.
What Is Guardianship?
Guardianship is a court-appointed role where the Ontario Superior Court of Justice authorizes someone to make decisions for a person who is already mentally incapable and has not created a valid Power of Attorney.
There are two types of guardianship in Ontario:
- Guardian of Property – manages the person’s finances.
- Guardian of the Person – makes decisions about health care, shelter, nutrition, safety, etc.
Key Features of Guardianship:
- Requires a formal court application or involvement of the Office of the Public Guardian and Trustee (OPGT).
- Often used when no POA exists, or there is a dispute over a POA.
- Must follow strict legal responsibilities and reporting requirements.
- Can be temporary or permanent, depending on the circumstances.
Main Differences at a Glance
| Feature | Power of Attorney | Guardianship |
| Who creates it? | The individual (grantor) | The court or OPGT |
| When is it set up? | While the person is mentally capable | After the person becomes incapable |
| Is court involved? | No | Yes |
| Flexibility | High – tailored by the grantor | Limited – based on legal findings |
| Oversight | Minimal (unless abuse is suspected) | Court supervision and regular reporting |
| Can it be challenged? | Yes, if validity or capacity is in question | Yes, but through legal process |
Why Does This Matter?
The difference between POA and guardianship often becomes critical in crisis situations. If a loved one becomes mentally incapable without a POA, family members may face delays and legal hurdles in applying for guardianship. This can complicate health care decisions and financial management during already stressful times.
Best Practices
- Plan ahead: Appoint a Power of Attorney while you’re still capable.
- Choose wisely: Pick someone trustworthy and discuss your wishes in advance.
- Review regularly: Ensure your POA documents still reflect your current preferences and life circumstances.
- Seek legal advice: Especially in complex family situations or where large assets are involved.
Takeaways
- Both Powers of Attorney and guardianship serve the same essential purpose: to protect vulnerable individuals.
- However, they differ significantly in how they’re created, who controls them, and the legal processes involved.
- Taking proactive steps to put a POA in place is usually the simplest and most effective way to ensure your affairs are handled the way you want—without unnecessary court involvement.
What Weilers LLP can do to help you
Whether you are planning ahead and wants Powers of Attorney or need to apply for guardianship of a relative who left it too late, consider consulting a Weilers LLP estate planning lawyer. The cost of POAs is modest, and even more advantageous when combined with a will. Our cost for a guardianship application varies depending upon the complexity of the facts but is competitive and moderate. Give us a call and see if we are the right lawyers for you.