If a person becomes mentally incapable of managing his or her property (including real estate and all other financial assets), where there are assets and income that need to be managed on behalf of that incapable person, and where there is no less restrictive means of addressing the situation (such as a valid power of attorney for property), then another person can apply to the Ontario Superior Court of Justice to be appointed by the court as the incapable person’s guardian of property.
Similarly, if a person becomes mentally incapable of making his or her own personal care decisions (health care, shelter, safety, nutrition, clothing, hygiene), where there are personal care decisions that actually need to be made, and where there is no less restrictive means of addressing the situation (such as a valid power of attorney for personal care), then another person can apply to the court to be appointed as the incapable person’s guardian of the person.
Adults can become mentally incapable of making their own decisions as a result of illness, brain injury, or dementia. Minors are considered to be incapable of managing property as a result of their minority. Parents of minors are often surprised to learn that they are not authorized to manage their minor child’s property just because they are a parent of that child - if the minor has assets over $10,000 that need to be used for the minor, the parents would have to apply to the court for guardianship in order to have the legal authority to manage those assets on their child’s behalf.
These applications require a sworn affidavit to be filed with the court which provides evidence of the person’s incapacity, the need for a guardian, who the guardian should be, and what that proposed guardian’s plans are with respect to the management of the person’s finances (to be set out in a Management Plan) and with respect to the manner in which personal care decisions will be made (to be set out in a Guardianship Plan).
Guardianship applications must be served on the alleged incapable person, all immediate family members of the alleged incapable person, and The Public Guardian and Trustee (where the alleged incapable person is an adult) or The Children’s Lawyer (where the alleged incapable person is a minor).
The process for bringing a guardianship application for an alleged incapable adult person and the duties of a guardian are set out in the Substitute Decisions Act, 1992. This legislation lays its foundation on the principle that all individuals over the age of 18 are presumed to be capable of managing property and all individuals over the age of 16 are presumed to be capable of making personal care decisions. A finding of incapacity and appointment of a guardian by the court is not done lightly as it is a significant elimination of a person’s autonomy and right to make his or her own decisions. Accordingly, the legislation provides a strict application process that must be followed and, in cases where a guardian is ultimately appointed, there are explicit duties and rules that the guardian must abide by in acting as a fiduciary for the incapable person.
Sometimes, guardianship applications are “unopposed”, meaning that the incapable person and all of their family members are in agreement with the proposed guardian’s application. Other times, the application is opposed by the incapable person or his or her family members and in that situation, contested guardianship litigation ensues. These cases can become highly emotionally charged, time consuming, and expensive.
Our lawyers are known for their sensitive and practical approach to these emotionally charged situations. Combining our legal expertise with great attention to detail and an understanding of what is important to the client, we help our clients build their strongest case while encouraging and assisting them to find creative and practical solutions to resolve disputes. Our lawyers have excellent courtroom skills, but they are also very effective at helping clients achieve resolutions in non-litigious ways, such as through facilitated mediations or negotiations with opposing parties and their lawyers.
Many clients don’t know whether they should proceed with a contested guardianship application or not, whether it is the best option, or whether they can afford it. If you come in for a consultation with us, we will give you an honest opinion, that is based on your case, circumstances, needs and means. If we think that a guardianship application is not the best option for you and your family, we will not push you in that direction just to get the work out of you. If you do decide to litigate though, we will advocate for you with a high degree of skill, expertise and empathy.
For a summary of the role and duties of a guardian of property and a guardian of the person see our Information Sheets