The law presumes that every adult person is capable of making their own decisions.  The law also presumes that every adult has mental capacity to make their own decisions unless there is evidence to the contrary.  Whether through illness, disability, or ageing, a person may loose his or her capacity to make decisions regarding their Property/Finances and Medical/Personal Care.

If a person no longer has capacity to make important decisions, then it may be necessary and advisable to have a formal capacity assessment completed.  A formal capacity assessment will be performed by a qualified and trained capacity assessor whose aim it is to determine whether the client has the requisite capacity to make decisions regarding her Property, Finances, Medical Care, and Personal Care.

If a person is found to be incapable of making decisions and if there is no Power of Attorney appointed, then you may make a formal Application to a Judge to be appointed as the incapable person’s “Guardian” which, if granted, will allow you to make decisions for and on behalf of the incapable person.

The Substitute Decisions Act, 1992, S.O. 1992, c. 30 sets out the law that applies to adult persons who are vulnerable by virtue of their lack of mental capacity.  The SDA provides for two (2) spheres of decision-making, namely decisions regarding Property/Finance and Medical/Personal Care.

Guardianship of the Person can only be obtained through an Application to the Court.  Guardianship of Property can be obtained either by way of a Court Application or by way of a statutory appointment by virtue of a capacity assessment under the Substitute Decisions Act.

A Guardian, whether for the person or for the property of the incapable, is a fiduciary who is obliged to act in the “best interests” of the incapable person.  A Guardian will be asked to account for their actions and be responsible at law for the decisions he or she makes in respect of the incapable person.

A guardian cannot be appointed for a person for personal care or property, unless the court makes a finding that the person is mentally incapable of managing property and/or personal care.  This is where a formal capacity assessment will be required.  If the person is found to be incapable by the capacity assessor, this finding will then be published in the capacity assessor’s report.  The capacity assessor’s report will then be used as evidence to seek a finding of incapacity from a Judge.

The procedure for bringing guardianship applications is set out in Part III of the SDA and in accordance with the Rules of Civil Procedure.  The procedure includes providing the Court with detailed and relevant information (including evidence of the incapable person’s incapacity) in the form of a Notice of Application with a detailed Affidavit.

All Guardianship Applications are brought on notice to the Public Guardian and Trustee (“PGT”).  The PGT is the agency that oversees and looks out for incapable persons.  The PGT will assign a caseworker and lawyer to review your Guardianship Application.  After its review, the PGT will write a review letter stating their position on your Guardianship Application as well as providing advice or direction it deems appropriate.  

Guardianship with respect to minors is governed by the Children’s law Reform Act, R.S.O. 1990, l c.C.12.  For children, all Guardianship Applications are on notice to the Office of the Children’s Lawyer.

We provide expert Counsel in all aspects of Guardianship, Capacity Assessments, and Elder Law.

Please call us at 905-720-0777 to ask us all of your questions regarding Guardianship.

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