We presume that every adult person is capable to make his or her own decisions. However, what happens where a loved one may not have the requisite mental capacity to make decisions regarding his or her property or his or her finances?
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 Substitute Decisions Act provides for 2 types of Guardianship, namely Guardianship of Property and Guardianship of the Person.
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.
The procedure for bringing guardianship applications is set out in Part III of the SDA and in accordance with the Rules of Civil Procedure.
Guardianship with respect to minors are governed by the Children’s law Reform Act, RSO 199l c.C.12.
For more information regarding Guardianships in Ontario, please contact us for a consultation.