Incapacity: Being Unable to Care for Yourself or Your Affairs

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An unfortunate event, or simply aging, could one day rob you of the ability to take care of yourself or manage your affairs. The lack of the ability to make your own decisions is called “incapacity”. Incapacity impacts your daily life, but there are ways to protect yourself and to make sure your choices are respected.

Becoming Incapacitated

Incapacity means that you are unable to care for yourself or your property. An incapacitated person suffers from a loss of autonomy or mental ability. It is important not to confuse incapacity with physical health problems. You can have a physical health problem and still be fully capable of making your own decisions.

You Are Capable Until Proof That You Aren’t

All adults are presumed to be capable of taking care of themselves and their property. This means that anyone who wants to have you declared incapacitated must prove your incapacity. Among other things, medical and psychosocial evaluations will help determine whether your degree of incapacity is:

  • partial or total; and
  • temporary or permanent.

When it becomes necessary to protect you because of incapacity, the goal is to respect your autonomy as much as possible while also adapting to your needs. 

Partial or Total Incapacity

Incapacity can be partial or total, depending on your degree of autonomy.

Your incapacity will be considered partial if you can still do certain things.

For example, an elderly woman is lucid and able to communicate her opinions. She knows her birthday and her age. She can solve simple math equations, but she recognizes that she is no longer able to manage her money on her own. The court declares her partially incapacitated.

Your incapacity will be total if you are no longer able to take care of yourself and your property.

For example, a 52-year-old man suffers a brain injury in a serious car accident. He has trouble organizing his thoughts, communicating with others, and knowing where he is or what time it is. The court declares him totally incapacitated.

Here are examples of conditions or events that can lead to partial or total incapacity:

  • a severe mental illness or intellectual disability
  • violent and repeated head trauma
  • a stroke
  • a degenerative disease (e.g., Alzheimer’s)

Every situation is different and analyzed to determine how much autonomy you have. For example, one person with Alzheimer’s could be partially incapacitated, and another person with the same disease could be totally incapacitated.

Incapacitated Forever or Only Temporarily?

Incapacity can evolve over time. Sometimes, a person becomes incapacitated only for a certain time. In other cases, the person never regains autonomy.

For example, a 24-year-old woman, who was born prematurely, has limited intellectual abilities that are associated with serious behavioural problems. According to her doctor, her incapacity is permanent.

Or, for example, a 69-year-old man has psychological problems and becomes addicted to drugs. He is undergoing treatment. According to his doctor, his incapacity is temporary.

The Impact of Incapacity on Your Life

Incapacity prevents you from doing certain things or making decisions on your own. For example, if you are totally incapacitated, you can no longer:

  • write a will
  • sign a lease or sell your house
  • manage your money
  • sign a protection mandate

But if you are partially incapacitated, you can still do some things and make some decisions yourself despite your incapacity. For example, you could:

  • drive a car
  • vote
  • make small donations
  • manage some of your money

Your Choice to Accept or Refuse Health Care

There’s a difference between “incapacity” and “incapacity to consent to care”. Your incapacity might mean that you can no longer choose to accept or refuse health care. But it’s not automatic. You could be incapacitated and still able to:

  • choose whether to receive health care
  • make advance medical directives
  • ask for medical aid in dying

Act Now So Your Choices Are Respected Later

You can act now to guide those people who will take care of you later if you become incapacitated. Your preferences and your choices will then be accounted for.

For health care, you can make advance medical directives. This involves filling out a form that has a list of specific treatments. You indicate which treatments you want to receive and which ones you refuse.

For more information: Éducaloi’s article Advance Medical Directives

For choices about your well-being and your property, you can make a protection mandate. A protection mandate is a document that names someone to take care of you and your property. In the protection mandate, you can indicate what you do or do not want to happen with your health care or the management of your property.

For more information: Éducaloi’s article Protection Mandates: Naming Someone to Act for You

What If You Haven’t Planned Ahead?

The law often allows your loved ones to look after you if you don’t have a protection mandate or advance medical directives.

For example, your spouse (either married or common-law) can decide for you whether you receive health care. If you don’t have a spouse, one of your close relatives (your child, for example) or someone who has your interests at heart (a close friend, for example) could consent or refuse for you to receive health care.

For more information: Éducaloi’s article Adults Who Can’t Make Medical Decisions on Their Own

If you are married (or in a civil union), your spouse can continue to take care of basic family needs in your name, such as electricity, heating, housing, or groceries. To learn more about these standard protections, visit the Public Curator’s website.

However, if you have a lot of assets or you need more protection, protective supervision might be necessary. Someone who shows a special interest in your life (or, as a last resort, the Public Curator) will be designated to take care of you and your property.

For more information: Éducaloi’s article Protective Supervision for Vulnerable People