When a child with an intellectual disability becomes an adult, the financial system often works against them

By Max Shilletto

For many Canadian families, a child’s 18th or 19th birthday is a milestone. A step towards freedom. A moment of celebration. But for families of young adults with intellectual disabilities, those celebrations can be clouded by the realization that legal systems that once allowed parents to help them no longer recognize them.

Parents who have spent years supporting a child with an intellectual disability—helping manage appointments, coordinate care, manage finances—can find themselves suddenly shut out when the adult child still needs their help.

Nothing changed for their loved ones overnight. But there are rules.

Across much of Canada, reaching the age of majority poses an invisible barrier. One day, a parent can help their child who may still struggle to understand the rules and mechanics of the government and financial system. Next, they may have to obtain expensive and time-consuming formal legal authority to do the same.

For families already carrying the full load, it’s one more system to navigate. And it’s not an easy one.

At the root of the problem is how our law defines power. In many provinces, a person is considered able or disabled. There is very little middle ground. If someone is considered competent, they are expected to work independently by the time they reach the age of majority. If they are considered incapacitated, the solution is often an application to the court to appoint a guardian or trustee to make all decisions for them.

This may be a suitable solution in some cases. But this ‘either/or’ formula does not reflect the reality of many people living with intellectual disability, where abilities may be partial, evolving or dependent on the type of decision-making.

Someone living with an intellectual disability may be fully capable of making personal choices – where to live, what to eat or who to spend time with – but still need help managing money, dealing with financial and government institutions or understanding complex documents.

What adults with intellectual disabilities often need is support, not replacement. Yet the law provides few practical options for providing that support without crossing a legal threshold that removes autonomy altogether.

This gap is felt most acutely when it comes to finances. Many Canadians appoint a fiduciary to manage financial affairs under a durable power of attorney before losing capacity. But this option is only available to those who meet the legal threshold for capacity at the time of their signing. For some people with disabilities, that moment may never come.

Other than a power of attorney, financial institutions often require formal legal authority. They are understandably wary. The result is that families can often help with caregiving, but not with the financial decisions—paying rent, managing benefits, managing costs—that make caregiving possible.

The alternative is to seek a court order. This process usually involves medical tests, legal fees and delays of several months. This can cost thousands of dollars and requires families to officially prove that their loved one does not have capacity. This is a blunt force solution to a short problem.

This puts families in an impossible position. To help, they must ask the legal system to take away their loved one’s autonomy.

Fortunately, there are better models that already exist in Canada.

British Columbia allows adults with reduced capacity to appoint trustees to help them make decisions, including routine financial matters, without going to court. This approach reflects a more realistic understanding of power and recognizes that support can exist without stripping autonomy.

Some challenges still remain. Financial institutions don’t always understand these representation agreements. But the framework itself points in the right direction by allowing families to receive support before it reaches a crisis point.

Other provinces should learn from this example. Capacity and adult guardianship laws are provincial responsibilities, and provincial governments can modernize them by creating accessible, out-of-court legal tools for supported and shared decision-making, including regular financial matters.

Banks and government agencies must provide proper training to recognize these measures, so that families do not turn to the counter.

This is not about reducing security. The risks of abuse and exploitation are real, but protecting people does not require taking away their autonomy. Support will not require court applications, medical evaluations or costly legal processes.

Provinces can now act by modernizing the Powers Act and the federal government can support coordination across jurisdictions. We have to do better.

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About Max Shilletto

Max Shilletto is an estate planning lawyer and disability lawyer in Vancouver.

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This post was Previously published on Quoimedia.com and is republished here under a Creative Commons License.