Disputes relating to the guardianship of a person or of their property are relatively common in the world of estates and trusts litigation. To be clear, the appointment of a guardian is done through the court process and via a court order, whereas the appointment of an attorney for property or personal care is effected by the granting of that authority by one individual to another or to multiple persons. The purpose of this blog is to provide a refresher on the main principles applicable to guardianship applications.

Before a guardian of property or of the person can be appointed, the court must find and declare that the individual over whom guardianship is sought is incapable (with respect to the management of his/her property and/or with respect to his/her personal care).

A person is incapable of managing their property if that person is unable to understand information that is relevant to making a decision in the management of their property, or if they are unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.[1]

The court’s authority to appoint a guardian for property is found at section 22(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Under that subsection, the court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property.[2]

An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.[3]

When determining whether to appoint an applicant as guardian for property, the court shall consider: (a)  whether the proposed guardian is the attorney under a continuing power of attorney; (b) the incapable person’s current wishes, if they can be ascertained; and (c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.[4]

The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that, (a) does not require the court to find the person to be incapable of managing property; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.[5]

In respect of personal care, a person is incapable of managing their personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[6]

The court’s authority to appoint a guardian for personal care is found at section 55(1) of the SDA. Under that subsection, the court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care.[7]

An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45 of the SDA (i.e. health care, nutrition, shelter, clothing, hygiene or safety), or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.[8] The order shall specify whether the guardianship is full or partial.[9]

The court may make an order for full guardianship of the person only if the court finds that the person is incapable in respect of all functions referred to in section 45 of the SDA.[10]

When determining whether to appoint an applicant as guardian for personal care, the court shall consider: (a) whether the proposed guardian is the attorney under a continuing power of attorney for property; (b) the incapable person’s current wishes, if they can be ascertained; and (c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.[11]

The court will not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that: (a) does not require the court to find the person to be incapable of personal care; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.[12]

These governing principles provide the general framework for when the appointment of a guardian may be appropriate. Even if such an application is unopposed, the court imposes strict criteria to ensure the best interests of the incapable person remain paramount.

 

[1] Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”), section 6.

[2] SDA, section 22(1).

[3] SDA, section 25(1).

[4] SDA, section 24(5).

[5] SDA, section 22(3).

[6] SDA, section 45.

[7] SDA, section 55(1).

[8] SDA, section 58(1).

[9] SDA, section 58(3).

[10] SDA, section 59(1).

[11] SDA, section 57(3).

[12] SDA, section 55(2).