This blog post was written by Holly LeValliant, Estate and Trust Consultant, Scotiatrust Toronto

If you do not have Powers of Attorney for Property and Personal Care, and it is necessary for someone to step into your shoes to make decisions about significant areas of your life, what happens?  In this article, I outline the process, in Ontario, of bringing a Guardianship Application to become the decision-maker for a person who is not mentally capable of making decisions about their property and health.

A Guardianship Application is a court process governed under the Substitute Decisions Act, the Rules of Civil Procedure, and in the case of minors, the Children’s Law Reform Act.  The Application materials include a Notice of Application, a Management Plan, the proposed Guardian’s consent to act, a Draft Order, and an Affidavit signed by the Applicant that includes a statement that the person who is alleged to be incapable has been informed (and how they were informed, or why they could not be informed) of the nature of the application and their right to oppose it.

Guardianship of the Person may be required to make decisions about an adult’s health, nutrition, shelter, clothing, hygiene, and/or safety.   A person may be found to be incapable of making decisions about all or some of those subject areas.

Guardianship of Property may be required for an adult where there is a finding that they are incapable of managing their property and that it is necessary for decisions to be made on their behalf.  For the Substitute Decisions Act, a person is incapable of managing their property if they are unable to understand information that is relevant to making decisions in the management of their property, and they are unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision.

Capacity exists on a spectrum:  it is decision-specific and issue specific.  Legal capacity may also fluctuate over time; for example, a person with an addiction or a mental health issue may be capable at some times but not at others.  The law presumes that every adult is capable, so for a Guardian to be appointed, the court must first find that the person is incapable of making decisions about the particular issues over which Guardianship is sought.

The following parties must be put on notice of a Guardianship Application:

• The person who is alleged to be incapable;
• The Attorney for Property and/or Personal Care of the allegedly incapable person, if any;
• The Public Guardian and Trustee; and
• The proposed Guardian.

The Public Guardian and Trustee’s Office is part of the Attorney General’s Office in the Victims and Vulnerable Persons Division.  Where no one is willing or able to act as the Guardian of an incapable adult, the Public Guardian and Trustee will act as the Guardian of last resort.

When appointing a Guardian for Property, the court considers whether the incapable person has a continuing Power of Attorney, the incapable person’s wishes, and the closeness of the relationship between the applicant and the incapable person.

The duties of a Guardian for Property require the Guardian to do all of the following:

• Keep accounts in court passing format;
• Perform their duties with honesty, integrity and in good faith, for the incapable person’s benefit;
• Consider the incapable person’s comfort and well-being;
• Encourage the incapable person to participate in decision-making;
• Consult with the incapable person’s supportive family members;
• Act in accordance with the management plan. If circumstances change and the management plan needs to be amended, it must be provided to the Public Guardian and Trustee for approval;
• If the Guardian does not receive compensation, they have the duty to exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in conducting their own affairs. If the Guardian is compensated, they have a duty to exercise the degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.

According to the Regulations associated with the Substitute Decisions Act, a Guardian is entitled to receive compensation based on 3% of the disbursements they make from the incapable person’s capital and revenue, and a management fee of 0.6% of the fair market value of the assets under administration.  When a court reviews a Guardian’s compensation they consider the same factors when they determine the compensation for the Executor of an Estate:  the care, pain and trouble involved in the administration, the time spent performing the required tasks, the size of the assets involved in the administration, the skill and ability involved in administering the assets, and the success resulting from the administration.

It is important to note as well that a Guardianship Application involves a public hearing in a courtroom.

Given the complexities involved in a Guardianship proceeding, where possible, the process can be avoided by having Powers of Attorney for Property and Personal Care.