A guardian is a substitute decision maker, who steps into the shoes of a person who is not mentally capable of making a particular decision. A person may not be mentally capable for a variety of reasons, but the most common cause is the result of dementia. The Toronto Star has already reported that dementia is on the rise and “cases of the mind-robbing disease will more than double to 1.25 million within 30 years as baby boomers age”. For estate lawyers, this statistic is alarming as we will certainly see a rise in disputes involving the elderly, particularly in the context of guardianship disputes.
In an article published by the Lawyer’s Weekly, author Marshall Swadron discusses the setbacks that occur within the family dynamic during a guardianship dispute. Mr. Swadron says that guardianship disputes are “are costly, demeaning, rarely restorative and can do more harm than they set out to prevent.” If you or someone you know is involved in a guardianship dispute, Mr. Swadron suggests that the parties should consider the following to resolve the dispute:
1. Empower the Incapable: the first problem solving technique that should be invoked during any sort of guardianship dispute, is for the parties to take a step back, and attempt to involve the allegedly incapable person to the fullest extent possible. This technique is best done when family members give consideration to the allegedly incapable person’s present wishes. This principle is recognized under the statute that governs substitute decision makers, the Substitute Decisions Act (“SDA”). It would be beneficial for the allegedly incapable person to engage a lawyer, and where the person’s capacity is in question, section 3 of the SDA, ensures representation through the appointment of the public guardian and trustee to arrange for legal representation or an court order, which deems a person capable for the purpose of retaining and instructing legal counsel.
2. Open Lines of Communication: Rule 75.1 of the Ontario Rules of Civil Procedureprovides for mandatory mediation of all disputes under the SDA. Mediation won’t force the parties to get along, but it can get them to come to the table and discuss the issues that are in the best interests of the alleged incapable person.
3. Always put the Incapable Person First: A guardianship dispute can sometimes be seen as a precursor to estate litigation. It’s important for the parties involved in the dispute to recognize the limits of guardianship proceedings. “The SDA is concerned primarily with the wellbeing and wishes of the incapable person, and secondarily with the needs of his or her dependants during the person’s lifetime.”
4. Given the financial costs and the emotional nature of a guardianship dispute, it can often do more harm than they set out to prevent. As society ages and cases of dementia continue to increase, we certainly will see a rise in guardianship disputes. For those involved in guardianship proceedings it’s important to remember that the primary concern is the wellbeing and wishes of the incapable person.
Thank you for reading,