Applying for Guardianship, Guardianship Disputes – Fact Sheet

Applying for Guardianship and Guardianship Disputes – Fact Sheet

 

A power of attorney is a document that allows others to make financial or medical decisions for them. However, sometimes a person becomes incapable of managing these things before they have had the chance to do so. What happens then? Read on to learn more about guardianship disputes.

Appointing a Guardian

If someone has become incapable and they have no designated power of attorney, the court will appoint someone to be their guardian.

The Public Guardian and Trustee (PGT) appoints guardians of property directly, without the need for a court application. Unlike guardians of the person, guardians of property can receive statutory guardianships – meaning they are entitled to all powers and privileges of the PGT.

Applying for Guardianship

Applications for guardianship require a sworn affidavit to be filed with the court providing evidence of:

  • The person’s incapacity
  • The need for a guardian
  • Who the guardian should be
  • The person is hereby notified that they have a right to oppose an application
  • A guardianship plan is a document that specifies the person’s personal care decisions.
  • For Property: A management plan is a document that describes the guardian’s plans for managing their ward.

Therefore, you have to give the application to all members of their family, the Public Guardian, and Trustee, or the Office of Children’s Lawyer.  A guardian must be 18 to deal with property, and 16 to deal with personal care decisions.

Resolving Guardianship Conflicts

An unopposed guardianship application means there is no opposition from a person or family member. Mediation is a process that non-court ordered parties have to go through before the court.

The Substitute Decisions Act of 1993 helps the courts limit guardianship conflicts by providing some guiding criteria:

For Guardian of the person, as per s 57, where there is more than one suitable guardian, the court shall consider

  • Whether the proposed guardian is an attorney under a continuing power of attorney for property
  • A person’s wishes should be followed if they can be determined.
  • The closeness of the relationship between the proposed guardian and the person (and of the applicant and the person if the applicant is a different person)

The court may appoint more than one person to guardianship, given that those applying consent to sharing their duties.

For Guardian of property, as per s 24, where there is more than one suitable guardian, the court shall consider

  • Whether the proposed guardian is the attorney under a continuing power of attorney
  • If the incapable person’s current wishes can be determined.
  • The closeness of the relationship of the guardian to the incapable person.

As with the guardian of the person, the court may appoint more than one person to guardianship, given that those applying are consenting.

Additionally, there are several governing bodies that handle disputes:

1) The Court of Session appoints the Public Guardian and Trustee when there are concerns that a person may be at risk of serious harm. If a person with a statutory guardianship is now capable, they can prove this by getting an assessment.

2) The consent and capacity board is an independent, expert administrative tribunal, who can review findings of incapacity. 

3) The SCJ also has the power to make any changes to guardianship, such as variances and terminations. Anyone contesting a statutory guardianship needs to show evidence that the incapable person is capable. However, to contest an appointed guardianship must first file a motion with the court.

 

We highly discourage anyone from seeking out legal advice through this article. Particularly, this article only provides general information, and if you have any further questions regarding the Applying for Guardianship and Guardianship Disputes, please contact us to book a free initial consultation.

To learn more about guardianship disputes, you can contact one of our specialized estate Attorneys. You can reach our office at 905-366-0202 or contact us through our website here.

 

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