Legal Issues for Minors and Adult “Children” with Disabilities
Guardianship Applications for Adult Children with Disabilities: Part Four of a Five-Part Series
Determining what is best for a child, ensuring their happiness and protecting them when warranted can become a quagmire of issues when the child has a disability and even more complex when that “child” becomes an adult.
This blog series is written for people with disabilities, parents/family members of disabled children, family law lawyers, estate and capacity lawyers, and people acting as substitute decision makers under powers of attorney or guardianship judgments, to highlight some of the many issues that should be considered when the property and personal rights of a minor or adult disabled child are involved.
In Part One of this series, I discussed those issues in the context of the guardianship of property of minor children. In Part Two, I outlined the legal rights of adult "children" with disabilities. In Part Three, l discussed key elements of the Substitute Decisions Act, 1992 (“SDA”) relating to adult children with disabilities. In this, Part Four of the series, I will address applications for guardianship of a disabled adult child's property and/or personal care.
Guardianship applications under the SDA
As discussed in Part Three of this series, where an adult disabled child is incapable of managing property or making personal care decisions, is incapable of granting a continuing power of attorney for property or power of attorney for personal care, and there are property or personal care decisions that need to be made for the adult disabled child that cannot be made by any less restrictive method, a person can apply to the court to be appointed as the adult disabled child’s guardian of property or personal care or both under sections 22 and 55, respectively, of the SDA.
For the purposes of this blog, the relevant components of a guardianship application under the SDA are as follows:
The application must be accompanied by sufficient evidence 2 of the adult disabled child’s incapacity to manage property or make personal care decisions.
The application must provide evidence as to why a guardianship is needed.
The application should provide information about the proposed guardian or guardians and why they are the most suitable person or entity to be appointed as the guardian.
If it is anticipated that the application will be contested by another person, for example by the other parent or another family member of the adult disabled child, then the application should provide information about these other individuals and evidence as to why those people would not be more suitable guardians than the applicant.
The application must include a management plan (regarding property) and a guardianship plan (regarding personal care) in the prescribed forms and signed by the person, people or entities being proposed as the guardian. These plans set out all of the details about the adult disabled child’s property and personal care issues and indicates how the proposed guardian will meet the adult disabled child’s property and personal care decision making needs if appointed.
The applicant must confirm that they have informed the adult disabled child of the guardianship application.
The application must be served on:
The adult disabled child;
All of the child’s immediate family members (including their parents, spouse or partner, and their children and siblings who are over eighteen in the case of a property application and over sixteen in the case of a personal care application);
In the case of property guardianship applications, the adult disabled child’s attorney for personal care or guardian of the person, if any;
In the case of personal care guardianship applications, the adult disabled child’s attorney for property or guardian of property, if any; and
The Public Guardian and Trustee.
Any of the above noted individuals, including the adult disabled child, have a right to respond to the application.
The application must be heard by the court orally, not in writing, usually in the jurisdiction where the alleged incapable person resides.
These applications often turn on the strength of the evidence of incapacity, the soundness of the plans proposed in the management plan and guardianship plan, the suitability of the proposed guardian to act as substitute decision maker, whether there is any opposition to the application by any of the parties who were served, and whether the PGT has raised questions and concerns about the application that have not been resolved prior to the court hearing.
Even very straightforward guardianship applications where there will likely be no opposition by any party or concerns raised by the PGT require detailed and accurate evidence to be filed and a thorough review by the court. This is because the ultimate judgment being requested could result in a declaration of incapacity and the appointment of a guardian of property or guardian of the person for the adult disabled child.
The outcome of the guardianship application can be a declaration that the adult disabled child is incapable of managing property and personal care, and the appointment of a guardian of property and the person. However, in some cases, the outcome can be a finding that the person is incapable of managing property and making personal care decisions, but capable of granting powers of attorney for property and personal care.
In these cases, the court may confirm that the adult disabled child has capacity to grant powers of attorney but in recognition of the child’s vulnerabilities due to their incapacity to manage property or make personal care decisions, the court may order that the attorney who the adult disabled child appoints must comply with certain additional duties, like submitting a management plan or guardianship plan to the PGT or to the court for approval which attorneys would not otherwise be required to do.
Duties of substitute decision makers
The SDA, and the almost 30 years of jurisprudence following its enactment, places significant responsibilities and duties on guardians of property and the person, and attorneys for property and personal care. Section 32(1) of the SDA provides that a guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit. Similarly, section 66(1) of the SDA provides that the powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith. These duties also apply to attorneys for property where the grantor of the power of attorney is believed to be incapable of managing property and to attorneys for personal care.
Other duties of substitute decision makers provided in the SDA include such responsibilities as:
Duties to keep accurate records of property and personal care decision making;
Duties to account for property management;
Duties to abide by the management plan and guardianship plan and to seek approval of amended plans if necessary;
Duties to make decisions in a manner that considers the incapable person’s comfort and well-being;
Duties to consult the incapable person and their supportive friends and family members in the decision making process;
Duties to foster regular personal contact between the incapable person and their supportive friends and family members.
The law places significant importance on the role of substitute decision makers and the corresponding responsibilities that come with these roles. If an adult disabled child’s property and personal care decision-making is going to be dealt with in the context of a family law dispute or during the cross-over time from the child’s minority to adulthood, the importance of these roles and the corresponding responsibilities should not be disregarded or undermined. In all such cases, there should be an examination and balancing of the relevant family law and substitute decision making law principles. Unfortunately, this does not always happen.
As will be discussed in Part Five of this series, in cases involving an adult disabled child of divorced or divorcing parents, there is often a conflict between the application of the Divorce Act (“DA”) and the SDA. This places the court in the position to decide which act should apply and how to balance the conflicting statutes and interests at hand. This has resulted in inconsistent judgments, several of which undermine the rights of the adult child under the SDA. Stay tuned for Part Five of this series, which will review some of these cases.
1 A person who is incapable of managing property can also have a statutory guardian of property, by operation of the SDA, rather than a court-appointed guardian. This is provided for at sections 15-21 of the SDA.
2 Usually this is provided in the form of a capacity assessment report provided by a designated capacity assessor under the SDA, and in the writer’s experience, that is the form of evidence the court prefers. However, the SDA does not require that the evidence be in the form of a capacity assessment report and in rare and straightforward cases, anecdotal evidence of incapacity along with medical records may provide the court with sufficient evidence of incapacity.