Guardianship
Appointment As A Guardian Of Property
Part of our services includes applying to court for appointing someone as an incapable person’s Guardian of Property, pursuant to s.22 of Substitute Decisions Act.
Who is a Guardian of Property?
A Guardian of Property is someone who is responsible for managing the financial affairs of an individual who is incapable of doing so himself or herself. Once appointed, a Guardian of Property becomes the incapable person’s “substitute decision maker”. The incapable person and proposed guardian must at least 18 years of age. Two or more persons could also apply to become joint Guardians of Property for an incapable individual.
The proposed applicant must prove their suitability to the court and may have to post a bond. For that reason, sometimes we advise and assist individuals apply to the court jointly with a trust company. As part of our services in applications for appointment as Guardian of Property, we will help you with preparation of a Management Plan, which is a document that helps satisfy the court of the applicant’s suitability.
Finding of Incapacity
Finding someone incapable of managing their own financial affairs, is technically something that only the court can do, when the Judge is satisfied that the person is not able to understand information that is relevant to making a decision in management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Public guardian and trustee and statutory guardianship
There are two other ways by which a Guardian of Property can be appointed. These methods do not involve a court application and are referred to as “statutory guardianships” and are pursuant to s.15 and 16 of the Substitute Decisions Act. In both occasions the Office of Public Guardian and Trustee (PGT) is appointed as the incapable person’s statutory Guardian of Property. Another area where we help clients is with applications to replace PGT as statutory Guardian of Property.
Who pays for legal fees and disbursements?
Usually, once a guardian is appointed by the court, he or she is allowed to pay our legal fees and disbursements using the incapable person’s funds.
Appointment As A Guardian Of Person
We also help our clients become appointed as Guardians of Person, when they want to make personal care and medical decisions for someone who is incapable of doing so themselves.
Who is a Guardian of Person?
Guardian of Person refers to someone who has been appointed by the court to make personal care and medical decisions for someone who lacks the capacity to do so himself or herself. The proposed Guardian of Person must be at least 16 years of age. Similar to Guardian of Property, the court may appoint two or more persons as guardians of the incapable person.
What are some of the “Powers” of a Guardian of Person?
A Guardian of Person who has full guardianship of someone else, may exercise significant power over the incapable person, including the power to,
- determine his or her living arrangements, shelter and safety;
- act as the incapable person’s litigation guardian, commence and settle claims on their behalf, though with some exceptions;
- access the incapable person’s personal information;
- make decisions about the person’s medical treatment, health care, nutrition and hygiene; and
- make decisions about the incapable person’s employment, education, training, clothing, recreation and social services provided to the person.
Who is incapable of personal care?
Similar to finding of incapacity to manage property, a finding of incapacity to care for oneself can only be made by the court, if and when the court decides that the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or the person is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Register of guardians
In Ontario, the PGT keeps a register of all Guardians of Property and Guardians of Person. Whenever someone is appointed by the court, as someone else’s Guardian of Property or Guardian of Person, the PGT will add the guardian’s name, address, and telephone number to the Register. Guardians are required, by law, to notify the PGT of any changes in the information contained in the Register.
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