Conflicting opinions about what is in the best interest of an incapable adult is at the core of many guardianship disputes. For example, adult siblings may disagree about the level of care their parent should be receiving or where their parent should live. Although rare, sometimes the conflicting views are between family members and the Public Guardian and Trustee (“PGT”). This was the situation in the recent decision of Public Guardian and Trustee v. Ochan, 2023 ONSC 5861 CanLII (“Ochan”).

In Ochan, a guardianship application was commenced by the PGT. The PGT sought to be appointed the guardian of property and of the person of a 20-year old man with intellectual and physical disabilities (he will be referred to in this blog as “D”). D does not have the capacity to make property or personal care decisions. He does not have a power of attorney for property or personal care. D has lived with his parents his entire life and been cared for by them.

D’s parents opposed the PGT’s application and asked that they be appointed jointly as D’s guardians of property and of the person.  Although the decision in Ochan does not elaborate on the details regarding the PGT’s concerns, the Court noted that the PGT does not believe maintaining the status quo was best for D and that there are years of concerns regarding the level of care D receives at home.

If appointed guardian of the person of D, the PGT will move him permanently to a residential care facility – one which D attends for one week every month. For their part, D’s parents want D to continue living with them and his siblings. The Court noted that, despite the opposing views, the primary concern of both the PGT and of D’s parents is D’s best interests.

Section 3 counsel was appointed for D. Although D is non-verbal he has means of communicating including by one-word answers, facial expressions, and a communication device. Section 3 counsel informed the court that D’s wishes are to remain with his parents and siblings. D does not want to move to a residential care facility and does not want the PGT to decide where he will live. D wants his parents to continue to care for him and make decisions on his behalf. In short, D does not want the PGT to become his guardian.

In determining whether to appoint a guardian of property and/or of the person, the Court noted that it shall consider: (a) whether there is an attorney for the incapable person under a continuing power of attorney; (b) the incapable person’s wishes (if they can be determined); and (c) the closeness of the relationship between the proposed guardian(s) and the incapable person (Wong v. The Office of the Public Guardian and Trustee, 2017 ONSC 268, at para. 5). Appointing family as a guardian is generally preferred but not automatic particularly when there are concerns about the proposed management plan. The Court also noted that the “overarching and fundamental factor a Court should consider when appointing a guardian is what is in the best interest of the incapable person.” (Consiglio v. Consiglio, 2012 ONSC 4629, at para. 37).

The Court had reservations about appointing the parents, given their track record. While some issues had been addressed by the parents and improved upon, the Court noted that there was no guarantee it would continue. On the other hand, D’s wishes and personal autonomy were to be taken into account, notwithstanding that he may not be capable of fully appreciating what is in his best interests. The Substitute Decisions Act, 1992, SO 1992, C 30 (s.25(2)(b) and s.58(2)(a)) provides the Court with authority for making temporary guardianship orders of the person and of property. The Court found it appropriate in D’s case to appoint his parents jointly as guardian of property and of the person with each appointment lasting for a 12 month period. After the 12 month period the parties will return to Court. At that time, the PGT can raise any concerns it may have, and the Court can terminate, modify, or extend the guardianship appointment of the parents.