Frequently Asked Questions About Guardianship

Watching a loved one’s health become increasingly compromised can be difficult. Even harder is knowing that they may not be able to manage their personal care or finances. When a loved one can no longer make decisions for themselves, guardianship may be necessary. It is helpful to understand what guardianship is and how to appoint a guardian if your loved one needs it.

What does a guardian do?

A guardian is a person who is legally responsible for caring for and managing the affairs of an adult who has been deemed incapable of acting on their own behalf. Guardianships are granted by the courts when a person’s mental health or physical condition prevents them from being able to manage their own affairs.

In Ontario, guardianship powers granted by the court can be made up of many different responsibilities. These include but are not limited to managing a person’s finances, making decisions about medical treatment, where they live, and how they spend their time.

What are some reasons someone might need a guardian?

Guardianship can be an essential tool to help protect your loved one’s interests and ensure that their wishes are carried out when they can no longer do so.

There are several reasons why someone might need to have a guardian appointed for them under Ontario law, including:

• The person has been deemed incapable by the court, or they have lost their ability to make their own decisions due to age or illness.
• They have no one else already named to legally make decisions on their behalfs, such as an attorney for property or personal care.
• They may have been declared bankrupt and cannot manage their financial affairs independently due to mental illness or other reasons as determined by the court.
• The person is disabled, and the Court needs to ensure they are properly cared for and provided with basic necessities of life. This can include the power to make financial decisions on behalf of the disabled person and make medical and lifestyle choices.
• The person has a cognitive impairment like dementia or Alzheimer’s disease, physical disabilities that limit their ability to speak or write, mental health conditions that affect judgment or decision-making abilities, or any number of other situations.

What does “capacity” mean?

Capacity is a term used in Ontario estates law to describe an individual’s ability to make decisions for themselves. In other words, it’s a person’s ability to understand and appreciate the nature of a decision and its consequences. In general, every person aged 18 or older is presumed to have capacity unless there’s some reason why they are unable to manage their own affairs. There are various levels of capacity required for different aspects of decision making – it is not a “one size fits all” test.

Who can be a guardian?

The Substitute Decisions Act, 1992has rules for guardians appointed to care for mentally incapable adults. In Ontario, a guardian can be any person over the age of 18 who is not otherwise disqualified from acting as a guardian. Guardianships can also be granted to trust corporations or other professionals.

What are the types of guardianship in Ontario?

Ontario has two types of guardianship: guardianship of property and guardianship of the person.

A guardian of property manages the financial decisions of a mentally incapable adult, where no previous power of attorney for property exists or could not be granted. They can be statutorily appointed by the Office of Public Guardian and Trustee or by an order of the Ontario Superior Court. They can open and close bank accounts in the person’s name, pay bills, buy goods and services, apply for benefits, and redirect pensions and other income.

If personal care decisions need to be made, this is addressed through a guardianship of the person. The only way to obtain this is to apply to court. This is an option usually taken by those who do not have a power of attorney for personal care. Guardians of the person can become decision-makers regarding clothing, shelter, nutrition, hygiene, safety, and health care.

An Application for guardianship must be made to the Superior Court of Justice, on notice to the Public Guardian and Trustee. The Application must contain evidence regarding the person’s capacity, as well as a detailed plan for how their assets will be managed and needs will be met. It must also be served on the person in question, as well as their immediate family members.

How do you determine whether someone is incapable?

If someone is concerned about the ability of another to look after their finances or personal care, they can request that a health professional called a “capacity assessor”  conduct an assessment of the person in question.  If there is a power of attorney already in place, the attorney can usually take over decision making. If not, a guardianship may be necessary. In some circumstances, a family doctor or a doctor who sees the person regularly may also be able to give an opinion as to the person’s capacity for decision making.

Is a guardian the same as a power of attorney?

A power of attorney is a legal document which names a trusted person or persons who will take over decision making in the event that the grantor becomes incapable, or in other specified circumstances. A power of attorney can only be granted before a person becomes mentally incapable. By contrast, guardians are appointed by a court after a person is deemed to lack capacity and usually only when there is no power of attorney already in force.

How is a guardianship terminated?

If you have concerns that a person’s guardian is not acting in their best interests, you can ask the Court to remove or replace the guardian. Alternatively, a guardianship may be terminated if there is clear evidence that the subject of the guardianship has regained mental capacity and can once again handle their own affairs.

Removing a court-appointed guardian under the Substitute Decisions Act is a complicated process. A motion must be filed with the Court outlining evidence and legal arguments that support the removal of the guardian or termination of the guardianship. These processes can be highly contentious. It is advisable to contact a qualified guardianship lawyer with your concerns as soon as possible to determine your rights and legal options.

Eisen Law Provides Trustworthy Advice & Legal Solutions in Guardianship Matters

The knowledgeable estate lawyers at Eisen Law in Toronto understand the complexities of guardianship matters. We can help you understand your legal options and ensure your loved one is taken care of. Our guardianship law team provides dependable advice to guardians, assists with Applications for Guardianship, and represents parties seeking the termination of a guardianship. Contact us for a free initial consultation on your estate or guardianship matter by calling 416-591-9997 or reaching out online.