Substitute Decisions Act Ontario: What Families Need to Know

What the Substitute Decisions Act Actually Does

The Substitute Decisions Act, 1992 (SDA) is the statute that governs every power of attorney created in Ontario. If you've been named as someone's attorney, or you're setting up POA documents for a parent, the SDA is the law that defines your authority, your obligations, and the limits of what you can do.

The Act splits substitute decision-making into two distinct tracks:

• Part I covers property decisions — bank accounts, investments, bill payments, real estate, and tax filings. The document created under Part I is called a Continuing Power of Attorney for Property (CPOA).
• Part II covers personal care decisions — medical treatment, housing, nutrition, hygiene, and safety. The document created under Part II is called a Power of Attorney for Personal Care (POAPC).

These are two separate legal instruments. You cannot use a single document to cover both under Ontario's framework.

Who Qualifies as a Substitute Decision Maker

The SDA sets out specific eligibility rules for anyone appointed as an attorney under a POA:

For property: The attorney must be at least 18 years old and mentally capable. They cannot be someone whose own property is under guardianship. A trust company can serve as an attorney for property, but not for personal care.

For personal care: The attorney must be at least 16 years old (a lower threshold than the property side), mentally capable, and not subject to a guardianship order.

The term "substitute decision maker" appears throughout Ontario health law as well. Under the Health Care Consent Act, if someone becomes incapable and has no POAPC, the HCCA creates an automatic hierarchy of substitute decision makers — beginning with a spouse or partner, followed by qualifying children or parents, siblings, and other relatives under the statutory rules. This hierarchy operates independently of the SDA and doesn't require any paperwork. But it only covers treatment consent decisions made by health practitioners — it doesn't give anyone authority over finances or housing choices.

Capacity Standards Under the SDA

The SDA sets different capacity thresholds depending on which document is being signed.

Section 8 (property capacity): The grantor must understand the nature and approximate value of their property, know their obligations to dependants, understand that the attorney could do anything with the property that the grantor could do (except make a will), and appreciate that the property's value could decline if the attorney doesn't manage it prudently.

Section 47 (personal care capacity): The grantor must understand that the named attorney will make personal care decisions on their behalf and appreciate whether the proposed attorney genuinely has their welfare in mind.

This distinction matters in practice. A person might meet the Section 47 threshold but not the more detailed property criteria in Section 8. If there's any question about capacity at the time of signing, a formal capacity assessment by a designated assessor can help document the relevant capacity question — though these assessments typically cost between $800 and $3,500 and are not covered by OHIP.

How the SDA Protects Vulnerable People

The Act builds in several safeguards against abuse:

Fiduciary duty. Every attorney appointed under the SDA operates as a fiduciary. They must act in the grantor's best interests (for property) or according to the grantor's known wishes and values (for personal care). Self-dealing — using the grantor's money for the attorney's own benefit — is a breach of fiduciary duty that can result in court-ordered removal, an accounting of all transactions, and personal liability.

Record-keeping requirements. Attorneys for property must maintain detailed records of every receipt, disbursement, and investment transaction. Under Ontario Regulation 26/95, anyone with a legitimate interest (the grantor, a family member, the Children's Lawyer, or the OPGT) can demand a formal accounting.

Court oversight. The Superior Court of Justice can remove an attorney, appoint a guardian to replace them, or order an attorney to pass their accounts (submit a formal ledger for judicial review). The application fee to pass accounts is $432, and contested accountings can reveal years of mismanagement.

OPGT intervention. The Office of the Public Guardian and Trustee has the authority to investigate complaints of abuse or neglect by an attorney. If the OPGT finds that an attorney is not acting in the grantor's best interests, it can apply to the court for removal.

When the OPGT Steps In Without a POA

One of the most consequential provisions of the SDA is the statutory guardianship mechanism. If a person is found mentally incapable of managing property and has no valid CPOA, a capacity assessor can trigger a process that makes the OPGT the person's statutory guardian of property.

This happens automatically — no court application is needed. The OPGT takes over management of all financial affairs and charges statutory fees: 3% on all receipts and disbursements, plus 0.6% annually on the value of assets under management.

Families can apply to replace the OPGT as guardian, but the process requires submitting a detailed property management plan and may require a surety bond. The OPGT generally requires a bond when the incapable person's assets exceed $250,000, or $500,000 when real estate is included; the required amount depends on the circumstances.

This is why proactive POA planning matters. The cost of setting up proper documents while a person still has capacity is a fraction of the cost of unwinding statutory guardianship after the fact.

The SDA and Your Power of Attorney Documents

If you're creating or reviewing POA documents in Ontario, the SDA dictates everything from execution requirements (two witnesses, no electronic signatures, specific witness disqualifications) to the scope of authority your attorney will hold.

The Ontario Power of Attorney Kit walks through every SDA requirement in plain language — the capacity standards your documents need to meet, the witnessing rules that invalidate documents when broken, and the fiduciary duties that apply the moment your attorney starts acting.

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