Guardianship: What is it, when is it required and other FAQs

Have you been told that you need to obtain “guardianship” to assist a loved one with their property and finances? Are you uncertain what guardianship is, what being a guardian entails, or how to go about obtaining guardianship? If you answered “yes” to any of these questions, this article is a good starting point on your journey towards guardianship.

I have been assisting clients with guardianship-related matters since I began practicing law in 2016. The purpose of this blog post is to outline the guardianship process and to answer frequently asked questions on the subject of guardianship. If your particular question is not addressed in this article, please feel free to reach out to my office. I would be pleased to answer any questions that you may have.

What is guardianship?

Guardianship is a legal relationship grounded in legislation that is created by a Court between two (2) or more people: a guardian and a person who has been declared incapable of making decisions with respect to their own affairs. It is possible too for there to be more than one guardian.

As the title suggests, a guardian “guards” the incapable person’s affairs and makes decisions on behalf of the incapable person because the incapable person is not able to make decisions on their own. The type of decisions that a guardian may be required to make on behalf of the incapable person will largely depend on the facts giving rise to the guardianship.

When is guardianship required?

The circumstances which give rise to guardianship vary. A person may require a guardian as a result of a disability the person has had since birth, or an acquired disability arising from an accident, and/or a cognitive illness (such as dementia or Alzheimer’s) that renders a person incapable of making a decision on their own behalf.

Guardianship is only necessary when:

1. The person in question is incapable of making decisions with respect to their property and/or personal care; and
2. The person in question does not have an existing valid power of attorney for property and/or power of attorney for personal care in place or there is no attorney willing or able to act; and
3. The person in question was never capable, or is no longer capable, of granting powers of attorney.

Is there more than one type of guardianship?

Yes. In Ontario, there are two forms of guardianship. Guardians of property make decisions with respect to the management of an incapable person’s property and finances. Guardians of the person make decisions with respect to one or more areas of a person’s personal care, including hygiene, clothing, shelter, nutrition, safety, and health care.

Can I be a guardian of property, but not a guardian of person?

This is a common question I am asked, which can be answered in the affirmative.

More often than not, people discover that their loved one needs a court-appointed guardian when it comes to matters relating to managing their loved one’s person’s property/finances. For example, selling a home, dealing with the Canada Revenue Agency, and/or paying bills.

With respect to personal care, matters relating to a person’s personal care decisions can often be navigated with resort to the Health Care Consent Act. The Health Care Consent Act contains a hierarchy of substitute decision-makers who are entitled to make health care decisions on behalf of an incapable person. If, however, there is a dispute between an incapable person and their substitute decision maker, or there is a dispute between two or more persons at the same level in the hierarchy, obtaining guardianship of person is a recommended course of action.

When I am asked by a client or prospective client whether they should only try to obtain guardianship of property but not guardianship of person, I often advise that it makes the most sense to obtain guardianship of person and property in one fell swoop. While the desire to gain authority to manage one’s property may be the underlying reason for seeking guardianship, the steps associated with obtaining guardianship of person does not materially impact the total cost of the guardianship application. A judgment appointing you as both the guardian of property and guardian of the person for your loved one will eliminate any concerns of those in the financial industry or health care industry as to whether you have authority to make a given decision.

How long does guardianship last?

The duration of a guardianship largely depends on the incapable person’s circumstances. A person may require a guardian for a limited period while they recover from an illness or injury, or a person may require a guardian indefinitely because there is no chance that he or she will ever regain capacity. For example, a person who is in a coma who does not have existing powers of attorney but who is expected to recover may only require a guardian during the time that person is in a coma and for a period of time that person is recovering from a coma. On the other hand, a person who is diagnosed with advanced dementia and who does not have existing powers of attorney for property will require a guardian for the rest of their life.

How will I know when guardianship is required?

The most common way that one discovers that guardianship is required is when they are trying to assist their incapable loved one who needs assistance with their affairs only to be told that they do not have legal authority to do so in the absence of a valid power of attorney for property or a guardianship order. This often leads to a search for the loved one’s power of attorney document (provided one exists) or scheduling a meeting at a lawyer’s office so that your loved one can make a power of attorney.

If there is no existing power of attorney document such that a lawyer is asked to prepare a power of attorney, the lawyer can only do so if the lawyer is satisfied that their client/prospective client has the capacity to make a power of attorney. If it is determined that a person does not have existing power of attorney documents and is not capable of granting a power of attorney, guardianship is the recommended course of action.

How do I obtain guardianship?

If you determine that guardianship is required, you will need to commence a court application to request that a court appoint you as guardian.

In Ontario, the Substitute Decisions Act, 1992, is the legislation that governs guardianships, and the guardianship application process generally.

The person commencing the application is known as the “Applicant”. The alleged incapable person over whom guardianship is sought will be named as a “Respondent”. As outlined in greater detail below, an entity known as the Office of the Public Guardian and Trustee (“PGT”)—an independent branch of the Ministry of the Attorney General—will also be named as a Respondent in the court proceeding.

What materials are required on a guardianship application?

Your application materials will consist of:

• An Application Record: This is a brief that is filed with the court that encloses all of your court material, including the items listed below;
• A Notice of Application: This is a document that outlines the relief that you are seeking from the Court and the grounds on which you are seeking the relief;
• An Affidavit: An affidavit is a written statement sworn or affirmed by the proposed guardian(s) that sets out information relevant to the application. An affidavit amounts to “evidence” and is filed in support of the relief sought in the application. When necessary, we attach “exhibits” to the affidavit, which are used to support certain statements that you make in your affidavit. For example, if you refer to a doctor’s letter or a capacity report in your affidavit, we attach the report/letter as an exhibit. In some circumstances, we file more than one affidavit in support of the proposed guardianship.
• Management and Guardianship plans: You must include plans that outline how you plan to manage the alleged incapable person’s property and how you plan to make decisions concerning the alleged incapable person’s personal care. These plans will be attached as exhibits to your affidavit.
• Consent Form: We also must include a consent form confirming that the proposed guardian consents to being appointed as such. In most cases, the proposed guardian is also the applicant, so the consent form may seem redundant. However, out of an abundance of caution, we encourage applicants who are the proposed guardians on a given application to provide their written consent.
• Consent from other interested parties: If there are other people who might be entitled, or even expected, to apply to be a person’s guardian (for example, an incapable person’s spouse, sister, parent, child or relative) it may be helpful to obtain that person’s or those persons’ consent to the relief you are seeking to make it abundantly clear to the court that you are the most appropriate persons to be appointed as guardian and that everyone who might be expected to apply to become guardian are agreeable to your appointment. This is not mandated by the relevant legislation but is helpful in securing the relief sought.
• Rights advice statement: As you can appreciate, the concept of guardianship is taken quite seriously by the court. This is because you are asking the Court to appoint you as the person to make decisions about another person’s property and/or personal care, which goes to the heart of a person’s autonomy. As such, to ensure that the incapable person is aware of the court proceeding, the Substitute Decisions Act requires you to confirm that you have notified the alleged incapable person of the Court proceeding. Quite often, the alleged incapable person is not capable of understanding what you are telling them on account of the circumstances that necessitated the court proceeding in the first place. However, you are still required to notify the person. If it is not possible for you to notify the person due to their circumstances (for example, they are in a coma, or you simply do not have access to them) you must indicate this in the court materials.

How do I prove to a Court that my loved one is incapable?

Whether a person is capable of making decisions on their own is a legal determination. Sometimes it is obvious that a person is incapable whereas in other instances, it can be quite tricky to determine whether a person is capable.

Before a Court will appoint you as a guardian, the Court must be satisfied that the alleged incapable person is, in fact, incapable of managing their property and/or making personal care decisions.

A letter from the incapable person’s treating physician confirming incapacity is usually accepted as sufficient evidence of incapacity. A letter from a doctor setting out an alleged incapable person’s diagnosis and prognosis together with a few comments about the alleged incapable person’s limitations and reliance on others in all aspects of their life, works in 99% of cases. However, as noted above, only people who are designated as “capacity assessors” under the Substitute Decisions Act, 1992 are entitled to provide an opinion regarding capacity. As such, even if you have a letter from a doctor confirming incapacity, a formal capacity assessment may be necessary if the court is not satisfied that an alleged incapable person is, in fact, incapable. If the alleged incapable person is unwilling to undergo a capacity assessment, it may be necessary to request a court order requiring the person to undergo an assessment, which orders are difficult to obtain.

What is the purpose of a management plan and guardianship plan?

As noted above, as part of your application to be appointed as a guardian, you will need to file a management plan and guardianship plan with the court. These plans are prescribed forms under the Substitute Decisions Act, 1992.

The management plan will detail your plans for managing your loved one’s property and financial affairs (i.e., income, assets and expenses). The management plan is a critical part of your application and must be approved by the PGT and by the Court. A guardian of property must act in accordance with the management plan as approved by the Court.

The guardianship plan addresses how you plan to make decisions with respect to all or certain aspects of personal care. Similar to the management plan, the guardianship plan must be approved by the PGT and by the Court. A guardian of the person must act in accordance with the guardianship plan.

I have prepared my guardianship materials, now what?

The Substitute Decisions Act, 1992 requires any person applying to become an incapable person’s guardian to put the alleged incapable person and their immediate family on notice of the proceeding. This means that you will need to serve the alleged incapable person with the guardianship materials. You will also need to serve the alleged incapable person’s parents, spouse, siblings and/or children with the guardianship materials. Each of these people will need to be personally served with the guardianship materials. This means that the guardianship materials must be handed directly to the person who is being served to ensure that all those who are entitled to notice of the application have, in fact, received notice.

You also must serve the PGT with the guardianship materials. The PGT will be named as a respondent in the application and will review the guardianship materials and identify any issues or potential issues with the proposed guardianship and the proposed plans. The PGT will ensure that all requirements outlined in the Substitute Decisions Act, 1992, have been met.

What are the duties of a guardian?

Being a guardian comes with a significant amount of responsibility. As a guardian, you will be considered a “fiduciary”. A fiduciary is a person who acts on behalf of a person and is legally bound to act solely in that person’s best interests. As such, if you are appointed as a guardian, you must act reasonably, honestly, and diligently, and put the interests of the person whom you have been appointed guardian for ahead of your own. Becoming a guardian is a serious undertaking and you will have several obligations and duties. Some of your duties and obligations will include:

• Maintaining detailed accounts and records;
• Providing an accounting to the Court in a formal process known as a “Passing of Accounts” from time to time;
• Seeking the incapable person’s participation when making decisions, to the extent that the incapable person is able to understand;
• Explaining your duties and role to the incapable person;
• Consulting with the incapable person’s supportive family members and friends from time to time;
• Making decisions in accordance with the incapable person’s best interests, having regard to the incapable person’s prior capable wishes;
• Seeking to foster regular personal contact between the incapable person and supportive friends and family; and,
• Following the management/guardianship plan as approved by the Court.

You can learn more about the duties and obligations of a guardian by reviewing the information contained at the following link: https://www.publications.gov.on.ca/300637

Are guardians entitled to compensation?

As a guardian of property, you will be entitled to receive compensation in the same way that an attorney for property is entitled to compensation, subject to a court order stating otherwise and/or what is contained in your management plan. In rare cases, you may also be entitled to receive compensation in your capacity as guardian of the person. For more information on compensation for guardians, I invite you to read my blog post on compensation for attorneys for property and compensation for attorneys for personal care.

Do I need to obtain a bond to become a guardian?

The Court may require you to post a bond if you are appointed as a guardian of property. As you may know, a bond is like an insurance policy—it is intended to protect the incapable person from being financially abused by the guardian(s). In order to be “bondable”, you generally must own assets in your name. The bond premiums are usually paid from the incapable person’s property. Depending on the size/value of the incapable person’s estate, the court or the PGT may require you to obtain a bond as a term of you being appointed as guardian.

If you require assistance with a guardianship-related matter, please do not hesitate to contact me at [email protected]. I would be pleased to assist you.