For the majority of Canadians, incapacity planning, either for ourselves or our loved ones, is often a subject that we like to avoid thinking about. However, the unfortunate ramifications of the absence of forethought is that we can eventually find ourselves in critical situations when our loved ones can no longer make their own decisions. Alternatively, even where there are Powers of Attorney in place, disputes or issues can arise which render these documents problematic. In both of these situations where we are faced with needing to take care of an incapacitated individual, often times a guardian needs to be appointed.
Under the Substitute Decisions Act (“SDA”), an individual can apply to the Ontario Superior Court of Justice to have a guardian of the person and/or of property appointed. An application can be made where there are no pre-existing substitute decision-makers (Powers of Attorney) designated, or where there is a dispute as to an existing Attorney. In order for the court to appoint a guardian it is essential that the individual for whom guardianship is sought is actually incapable. It is important to note that the legislation has specific procedures governing who can perform medical assessments and lists specific requirements surrounding consent. For example, the SDA specifically requires the allegedly incapacitated person to consent to a medical assessment for the purposes of determining capacity.
It is also important to note that appointments for guardianship for personal care and for property are separate and distinct appointments. Different individuals can be appointed in each position, and an individual could have one valid attorney appointment without the other. In determining who to appoint as a guardian, either for property or personal care, the court will generally consider the availability of family and other suitable persons to act as guardian(s). The incapacitated person’s spouse or partner, their relatives and/or existing Powers of Attorney who previously had limited powers are all individuals who can apply to be the guardian of the person. In the case of property guardianship, trust companies can also be considered for guardianship appointments.
Where there are no available persons to act as guardians, or where there is a dispute as to an existing guardian or attorney, the court can appoint the Public Guardian and Trustee (PGT) to act as a guardian. If a suitable alternative is later found, it is also possible under the SDA to have the PGT removed and the suitable alternative substituted by bringing an application to the court.
In terms of applying to the court, whether to appoint, substitute or terminate a guardianship order, the application process itself can be a daunting, cumbersome and time-consuming process. Depending on whether you are seeking a guardianship order for personal care, property, or both, different forms are required in the applications which set out the applicable care plan(s) and/or property management plans for the incapacitated individual. Oftentimes, when we are faced with the emotional stress of providing for an incapacitated loved one, the task of having to properly file for guardianship can seem insurmountable. If you or a loved one are in a situation where you need to consider making a guardianship application, or are seeking to plan ahead to appoint Powers of Attorney, it is important to reach out and seek assistance with incapacity planning to ensure that everything is in place. By taking proactive planning measures, you can help ensure that getting to guardianship is a smooth transition.