While estate lawyers are often presented with files that impact upon the rights of an incapable person, it is important to understand when, why and how the Public Guardian and Trustee (the “PGT”) becomes involved with such disputes.
As noted on its website, and in general, the PGT acts as litigation guardian of last resort for parties under legal disability involved in civil litigation (and as a legal representative of last resort for special parties involved in child protection or matrimonial litigation). Moreover, the PGT functions in accordance with the Public Guardian and Trustee Act and his directive is to protect those persons who cannot protect themselves where there is no one else available, suitable, and/or willing to provide such protections.
The mandate of the PGT is extremely broad and includes, but is not limited to, managing the property and personal care of incapable adults; acting as the litigation guardian or the legal representative for incapable persons involved in litigation; and making treatment decisions on behalf of incapable individuals.
However, the PGT does not have free-standing authority to act for people who may lack capacity in the opinion of a party to a proceeding. The PGT has to be appointed by a court order. In those instances, the following should be noted:
- A person bringing an application under the Substitute Decisions Act must serve the PGT with the court material and the matter will be assigned to guardianship counsel for screening;
- If a person is moving to appoint the PGT as a litigation guardian in respect of a party to a proceeding who lacks capacity and has no representation, the moving party would serve the motion material on the allegedly incapable person and the PGT. The motion would be assigned by the litigation team lead to litigation counsel. On the motion, the moving party must establish lack of capacity within the meaning of the applicable legislation, and provide evidence that there is no other person who can act. The consent of the PGT is not required in civil proceedings, but the PGT may make submissions if the rules of service have not been followed or if there are evidentiary issues. Counsel and parties should be aware that the PGT does not bring motions to appoint itself as litigation guardian. There is no investigation branch of the PGT for the purpose of determining whether any litigant in Ontario requires a litigation guardian – that is the role of the parties to that proceeding; and
- If a person has information that they believe attracts the investigatory function of the PGT regarding persons who lack capacity, have no attorney or guardian, or are at risk of adverse effect and need a guardian of property to stop that risk, that person can contact the Guardianship Investigations Unit and report their concerns to an investigations intake team member.
The email address for service and the phone number for investigations can be at https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/
As a final note, the rights of incapable persons are often treated as paramount in the eyes of the court. Even if the interest may be remote, serving the PGT with court materials out of an abundance of caution is usually prudent. The PGT can then advise whether and how it will involve itself in the litigation, if at all.