Guardianship Issues

When a person is found to be incapable, it triggers specific provisions under the Substitute Decisions Act, allowing individuals to apply for guardianship of an incapable person or allows the court to appoint persons to become the guardian. Guardianship, like power of attorney, can be for property or personal care. The key difference between the two is that a Guardian derives their power or authority from a court order. In contrast, the POA documents of appointment govern a power of attorney’s authority.

Guardian of  Property:

Under the Substitute Decision Act, Part I, outlines Statutory Guardians of property and Court-Appointed Guardians of Property. Under Statutory Guardianship, the court will appoint a guardian of their property where a person is found to be incapable of managing their property under the Mental Health Act. The court then appoints the Public Guardian and Trustee as the statutory guardian. Further, an assessment of capacity for statutory guardianship can be ordered or requested for the purpose of determining where the Public Guardian and Trustee should become the statutory guardian.

A Court-Appointed Guardian of Property is made by way of application to the court. Guardianship will be given if a person is found to be incapable of managing property and therefore necessary for the decision to be made on the individual’s behalf. An application can be made for court-appointed guardianship even if there is a statutory guardian already appointed.

There are two procedures used to become a court-appointed guardian. The first is the “standard procedure,” and the second is the “summary disposition procedure.” The standard procedure differs from the summary disposition procedure in that there is no formal hearing. Pursuant to ss. 72 and 77 of the Substitute Decision Act, summary disposition procedures are done “over the counter” – meaning instead of relying on a hearing, the sitting judge relies on the required material outlined under the SDA to make the decision in their “chambers.”

The powers of a guardian of property are set out under s.31 of the Substitute Decision Act, termed property management. The guardianship creates a fiduciary relationship between the incapable and the guardian, and it is the guardian’s duty to “exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.”

Guardian of Personal Care:

Similar to court-appointed guardians of property, court-appointed guardians of personal care are initiated by an application to the court. However, unlike guardianship of property, there is no statutory requirement for an assessment. The order made for appointing a guardian of personal care could be made for a limited time period or a length to which the court considered appropriate. The same two procedures listed in the guardianship of property are used when bringing an application for guardianship of personal care.

If a person is granted “Full Guardianship” of personal care, the authority granted to them is set out under s.59(2) of the Substitute Decisions Act. Subsection 59(2) states that the guardian may:

• Exercise custodial power over the person under guardianship, determine their living arrangements and provide for their shelter and safety;
• Be the person’s litigation guardian;
• Settle claims and commence and settle proceedings on the person’s behalf;
• Have access to personal information;
• On behalf of the person, make any decision to which the Health Care Consent Act, 1996 applies;
• Make decisions about the person’s employment, education, training, clothing, etc.; and

In some instances, it may not be appropriate to award guardianship.

The laws in Ontario will prohibit a court from appointing a guardian for a person if:

• A court finds that the need for a decision to be made can be met by an alternate course of action – where the need for a guardian is not needed for the management of the property or the person; or
• If there is a less restrictive way to resolve the issue that does not involve taking the person’s decision-making rights away by the appointment of a guardian – For example, if the individual has listed a valid Power of Attorney

Why Choose Us?

At Bickhram Litigation, we understand that Guardianship issues are stressful and emotionally draining. Our lawyers have a great deal of experience helping clients bring applications and litigate these matters. We provide sound legal advice and the support you need to make this challenging time a little less strenuous for our clients and their families. For more information on Guardianship proceedings and litigation, please get in touch with us for a complimentary consultation.