Applying for Guardianship, Guardianship Disputes – Fact Sheet

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

Appointing a Guardian

If someone has become incapable of managing their finances or health (due to illness, old age, an accident, etc.) and has no assigned power of attorney (POA), the Ontario Superior Court of Justice (SCJ) will assign someone to be appointed as the incapable person’s guardian. Just as there are different types of POAs, there are different types of guardians. The guardian for property is appointed when the person is unable to make their own property (real estate and financial) decisions, while the guardian for personal care (known in the Substitute Decisions Act, 1993 as the “guardian of the person”) is appointed when the incapable person is unable to make decisions concerning their health.1

Unlike guardians of the person, guardians of property can receive statutory guardianships, which means that they are appointed directly by the Public Guardian and Trustee (PGT) without the need for a court application.2

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

● A statement confirming that the incapable person has been made aware of the application and of their right to oppose it, or an explanation as to why they could not be made aware of this3

● For the Person: A Guardianship plan setting out the manner in which personal care decisions will be made4

● For Property: A Management plan setting out what the proposed guardian’s plans are with respect to the management of the person’s finances

The application must be served on (given to) the alleged incapable person, all members of their immediate family, and the Public Guardian and Trustee (if the incapable person is an adult) or

the Office of the Children’s Lawyer (if the person is a child). A guardian must be 18 to deal with property, and 16 to deal with personal care decisions.5

Resolving Guardianship Conflicts

In the best-case scenario, an application for guardianship will be “unopposed”. However, sometimes either the person themselves or their family members will oppose the application. Should this be the case, for non-statutory guardianships, the parties may need to go through a mediation process, or to the Superior Court of Justice, to resolve their dispute in contested guardianship litigation.6

The Substitute Decisions Act, 1993 offers a few guiding criteria for the Superior Courts of Justice in dealing with applications, to limit conflicts in the guardianship process:

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

● The incapable person’s current wishes, 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)7

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

● The incapable person’s current wishes, if they can be determined

● The closeness of the relationship of the guardian to the incapable person (and of the applicant and the person if the applicant is a different person)8

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 which handle disputes:

1) Public Guardian and Trustee: where there is a fear that a person is immediately incapable and at risk of serious harm, a Serious Adverse Effects Investigation will be performed by the PGT. If the person is found to be at risk for adverse effects, the PGT may be SCJ-appointed as a guardian for up to 90 days, and suspend any existing power of attorney from their role during this period.

At the end of this period, the PGT may allow the guardianship to lapse, request that the court provide an extension or apply for a permanent guardianship order (thereby terminating any existing power of attorney).9

2) Consent and Capacity Board: This is an independent, expert administrative tribunal, who can review findings of incapacity. If a party wishes for a statutory guardianship to be terminated, they need only show proof that the person is question is now capable which they can do by getting an assessment done by the consent and capacity board.

3) Superior Court of Justice: In addition to guardianship appointment, the SCJ also deals with any changes to the status of the guardianship, such as variances and terminations.10 Anyone contesting a statutory guardianship needs to show evidence that the incapable person is capable, however to contest an appointed guardianship, the contesting party will need to file a motion with the court and make an argument to convince the judge that changes should be made. Any such motion will need to be served on the person, their guardians (both for property and for the person), the attorney under any continuing POAs, and the PGT.11

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

Nothing in this article should be considered or relied on as legal advice or opinion. This article only provides general information and should you require assistance, please contact us to book a free initial consultation.

References:

1. Godard Gamage LLP, “Guardianship Applications”(15 April 2020) online (blog): Godard Gamage LLP [Godard].

2. Ontario, Ministry of the Attorney General, “Becoming a Guardian” (The Queen’s Printer for Ontario: 2006).

3. Substitute Decisions Act, 1992 SO 1992, c 30, s 70 [SDA].

4 .Godard, supra note 1.5 Godard, supra note 1. 6 Ibid. 7 SDA, supra note 3 at s 57 (3). 8 Ibid at s 24(5).9 Ontario, Law Commission of Ontario, Legal Capacity, Decision Making and Guardianship (Report), Final Report (Toronto: March 2017) at 21. 10 Ibid at 22. 11 SDA, supra note 6 at ss 26, 28, 61, 63.

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