In situations where there is no plan for incapacity, it may be necessary to apply to the Court for an order of guardianship and trusteeship. This often happens when an individual loses capacity because of disease or an accident, and has not been able to complete the necessary documents before the loss of capacity.

Another common scenario involves a mentally handicapped child who is approaching his or her 18th birthday. Upon reaching 18, that child is legally an adult and without a court order the parents have no authority to make decisions for their child. If the child’s condition is such that he cannot handle money, work, or live on his or her own, the family must step in and ask the court for an order giving them that authority.

Usually a family member will take on the role of a trustee and guardian for an adult who lacks capacity. The choice of who is best for that role depends on several factors including age and place of residence.

The estate of the adult for whom the order is made is responsible for payment of the costs of the application. If that adult is of very limited means, the government will pay a small amount for the legal fees.

The first step is to obtain an assessment of capacity by a physician who is qualified to provide the type of opinion required. The assessment must be in a particular form. There are a number of other documents which must be prepared in the correct format and submitted to the Office of the Public Guardian which in turns files them with the Court. A lawyer who is experienced in this area can guide you through the process, prepare and file the documents, and advise you regarding the options available for your particular case.