Guardians can be appointed where an individual is no longer capable of making decisions regarding their property (including real estate and finances) or personal care. Not only can this be an emotional and challenging decision for the individual dealing with their loved one’s incapacity, but it can also have serious legal and financial implications for the estate if the parties are not careful.
Prior to making such an application, it is important to consult with an experienced estate lawyer to understand your options. At Eisen Law, we provide effective legal counsel and assistance with guardianship matters, including applications for guardianship. Our lawyers are experienced, compassionate, and understanding, and strive to ensure that your loved one is protected. We ensure our clients have all of the information they need to make informed decisions during the application process and beyond.
A guardian for property or a guardian for personal care cannot be appointed unless a court makes a finding that a person is mentally incapable of managing their property or their personal care. Courts will make this decision on the basis of an application for guardianship.
The process of making such an application is governed by the Substitute Decisions Act. The Act presumes that all individuals over the age of 16 are capable of making personal care decisions, and that all individuals over the age of 18 are capable of managing their property. This is a serious presumption and ensures protection of fundamental personal rights. A finding of incapacity and a subsequent appointment of a guardian is therefore a significant decision that is not made lightly.
The application process is quite strict. The application requires a sworn affidavit filed with the court outlining evidence of the individual’s incapacity, the need for a guardian, suggestions for who the guardian ought to be, and what the guardian’s plan for personal care or property will be. The application must also be served on the incapable person, every immediate family member of the incapable person, as well as the Public Guardian and Trustee or the Office of the Children’s Lawyer (depending upon whether the individual is an adult or a minor).
Where a guardian is ultimately appointed, that individual is considered a fiduciary for the incapable person and has serious duties and responsibilities that they must fulfill.
Guardians for property are appointed to manage the financial affairs of a person unable or incapable of doing so themselves. Guardians for property are appointed by the court, or via a capacity assessment made pursuant to the Substitute Decisions Act.
Guardians for personal care are appointed to manage the personal affairs of a person unable or incapable of doing so themselves, and includes managing: hygiene, nutrition, shelter, healthcare, clothing, and/or safety. Guardians for personal care are appointed by the court.
At Eisen Law, our knowledgeable and experienced lawyers can help you ensure your loved one is taken care of. We offer free initial consultations and will do our best to ensure you can easily access the legal advice that you need. Call us at 416-591-9997 or contact us online if you need assistance in this specific area of estate litigation.
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