Some people reach a point where they can no longer make sound decisions about their properties or personal care. Reasons include age, temporary or permanent disability, or injury.
If an adult is incapable of making decisions, it’s possible to ask the courts to appoint a substitute decision-maker. But this can be a costly and intrusive process, so only do this if absolutely necessary. Unless otherwise stated, this article explains the process in Ontario, but many of the same considerations apply elsewhere.
When to avoid the courts
You probably don’t need to go the court route if the adult has a valid continuing (enduring) power of attorney for property or personal care in place (a guardianship order would terminate the existing powers of attorney).
Also, existing legislation may provide for substitute decision-makers in certain circumstances. For instance, the Ontario Health Care Consent Act prescribes a hierarchy under which relatives can consent to treatments on behalf of incapacitated adults. And, if the adult’s financial circumstances and living arrangements are modest and do not involve real estate or assets with financial institutions, there may be no practical need for a substitute decision-maker for property.
How to appoint a guardian
If you do need to obtain a guardianship order or equivalent, seek legal advice based on the relevant legislation in your province: in Alberta, for example, the Adult Guardianship and Trusteeship Act; in B.C. the Patients Property Act; and in Ontario the Substitute Decisions Act.
In Quebec, the court can appoint a curator or tutor (depending on whether the incapacity is permanent and total, or temporary or partial) to provide protective supervision to a person of full age with respect to their property or person.
In Ontario, any person may apply to be a court-appointed guardian of property or personal care: a spouse, child, niece or nephew, or friend, for instance. Trust companies often act as paid guardians of property, but not as attorneys for personal care.
The order for guardianship should include a finding that the person is incapable of managing property, or incapable with respect to some or all personal care functions (health care, nutrition, shelter, clothing, hygiene or safety). Doctors and qualified capacity assessors should provide this determination.
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Abilities of the guardian
A court-appointed guardian of property can do anything the incapacitated person would have done, except make a will or dispose of property that is the subject of a specific gift in that will, unless there is court approval.
The property guardian is also required to consult with certain people when making decisions. He or she must act for the benefit of the incapable person. A guardian of property must keep proper accounts of the incapable person’s property and may have to show those accounts to the court.
A guardian of personal care, meanwhile, may make decisions for the person, including those about the living arrangements, health care, nutrition and hygiene.
Originally published in Advisor's Edge