Blowing out eighteen candles signifies more than a birthday in Ontario; it marks a significant milestone where young adults gain the legal right to vote, sign any type of contract, independently manage finances, and sue or be sued.
An important caveat is that, in Ontario, the ability to consent to or refuse medical treatment is not determined by age, but by capacity. Regardless of age, if an individual understands the proposed treatment and appreciates the consequences of consenting to or refusing to consent to the treatment, they are presumed to have capacity.
However, in the context of disability, particularly for youth who have never been considered “capable” of making their own health care decisions, parents may be surprised to learn that they lose their automatic parental authority once their child turns 18. For autistic individuals and their families, this transition can raise unique questions and concerns, especially surrounding decision-making and support. While parents often rely on practical or informal arrangements to support their adult children, these solutions may no longer work or be recognized by various institutions. As a result, families may find that formal legal arrangements become necessary to ensure continued support and decision-making authority.
Before diving into the legal landscape, it’s important to recognize that autism is a spectrum. While some autistic young adults live fully independently and make decisions without assistance, others may need varying degrees of support with daily life or complex decision-making. The mere existence of an autism diagnosis does not, on its own, affect a person’s legal rights or decision-making authority.
The Presumption of Capacity
In Ontario, once someone turns 18 years old, it’s presumed that they are capable of making their own decisions. This presumption of capacity applies to all areas of life unless there is clear and compelling evidence to the contrary.
While the nuance surrounding the concept of capacity is beyond the scope of this blog post, it’s important to understand that capacity ebbs and flows, is not all or nothing, and can be specific to each individual decision.
Loss of Parental Authority and Practical Implications
Upon turning 18, parents no longer have the legal right to make decisions for their adult children unless a specific legal arrangement is in place. This shift has significant practical implications. For example, an autistic individual receiving the Disability Tax Credit may find that the Canada Revenue Agency will only communicate directly with them, not their parents, once they turn 18. Similarly, parents often lose access to their adult child’s medical records or may be unable to assist with obtaining government documents such as a passport or provincial health card.
Guardianship: What it is and When You Might Need it
Where there are genuine concerns surrounding an individual’s ability to understand information or appreciate the consequences of their decisions, families should consider whether potential legal support may be available. In Ontario, one such option is legal guardianship, which is a court-ordered arrangement that allows a trusted person to make certain decisions on behalf of an adult who has been found incapable of doing so themselves. For example, where an autistic adult is incapable of managing their finances or making informed decisions about medical care, and there is no other way of ensuring their needs are met, a family member may apply to become their guardian.
There are two types of legal guardianship:
- Guardianship of property: which involves managing a person’s finances and assets.
- Guardianship of the person: which involves making decisions about healthcare, living arrangements, and personal care.
However, guardianship is considered a last resort and is only granted where less restrictive alternatives, such as executing a power of attorney for property and/or personal care, is not possible due to a lack of capacity.
Before appointing a guardian for property, the court must be satisfied that the individual is incapable of managing their property and requires someone else to make those decisions. Similarly, a guardian for personal care will only be appointed if the court finds the person incapable of making decisions about health care, nutrition, shelter, clothing, hygiene, or safety, and in need of authorized support in those areas.
Final Thoughts
Turning 18 is a pivotal legal moment for autistic young adults and their families in Ontario. While the law presumes that all adults have the capacity to make their own decisions, regardless of disability, families should be aware that parental authority ends at this milestone.
Most autistic young adults will continue to exercise their rights independently, but for those who require additional support, legal mechanisms like guardianship exist as a safeguard when less restrictive options are unavailable. Understanding these changes and planning ahead can help families navigate the transition to adulthood with greater confidence and ensure that the rights and needs of autistic loved ones are respected and protected.
If you have any questions about legal guardianship or general estate litigation, please don’t hesitate to reach out to a member of our estate litigation team.
This blog post was written by Melissa Blackie, a member of the Estate Litigation and Commercial Litigation groups. She can be reached at 613-696-6029 or at melissa.blackie@mannlawyers.com.
