APPOINTMENT OF GUARDIAN
(OF PERSON OR PROPERTY)

When Is Guardianship Needed?
If an adult person is mentally incapable to make decisions due to illness or injury, someone must make the decisions for the disabled person.

 

There are a number of options for a person to make decisions about certain income or property and medical decisions, without being appointed under a Continuing Power of Attorney or a court order.  The Public Guardian & Trustee may take on managing property.  If a person is in a psychiatric hospital there are special rules.  But there are many limitations and technicalities.

 

A person unable to make decisions, may be cooperative with the person providing care and may not have any significant property to deal with.  They may not have major decisions to make.    There may be no dispute between people involved with the person about what should be done. The person may not need a legal decision maker.

 

To have full authority over the property or person of someone who does not have capacity to make those decisions, you need:

• a Power of Attorney (Person Care) and/or a Continuing Power of Attorney (Property), signed when the person had the capacity to make this decision (proof of this capacity may be necessary); or

• a court order appointing someone to make decisions for the disabled person, regarding personal and or property decisions.

 

How is Incapacity Proved?
Removing a persons right to make decisions about themselves or their property is only done when there is clear proof of lack of ability to make these decisions and if there is no other reasonable, less restrictive option.

 

The proof of incapacity required will vary with what the type of decision and the authority to make the decision relied upon.  For a court order of guardianship, an assessment by one or more approved professional(s).  One assessment is required for property decisions and two assessments for personal decisions.

 

The tests are:

• for personal decisions:  "... the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate [comprehend] the reasonably foreseeable consequences of a decision or lack of decision."

• for property decisions:  "... the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision."

 

The tests are about the understanding behind the decisions, not whether the person made bad decisions or the best decisions, or whether others agree with the decisions.

 

What is the "Plan(s) of Care"?
A person seeking to be a disabled person's guardian must file with the court detailed plans of what decisions they plan to make, how they will be made, and background information.  The guardian may later have to justify the decisions made that they were made in the best interest of the incapable person only.

 

What if the Person is in a "Psychiatric Hospital"?
A person can be in a psychiatric hospital voluntarily or involuntary. To be held in the hospital, they must have a mental illness that causes them to be a risk to themselves or others.  If they are no longer a risk after treatment, they can no longer be held.  They can oppose being held at a facility at the Consent & Capacity Board hearing. 

 

The Board may also make decisions about involuntary treatment of a person. A person in a psychiatric hospital may have limited freedom to make personal decisions and becoming a guardian of the person may not be necessary.  The hospital may end up making most personal decisions.

 

If a patient of a "psychiatric hospital" is certified as not being capable of managing his/her property, the Public Guardian and Trustee ("PGT") automatically becomes the guardian of property.  It will be terminated if there is a valid Continuing Power of Attorney (Property).  A person can apply to the PGT to replace THE PGT as guardian or go to court for an order appointing them as guardian of property. (This does not cover personal decisions.)

 

What about the Public Guardian & Trustee?
The Public Guardian and Trustee ("PGT") is a government agency responsible for, amongst other things, protecting mentally incapable persons.

 

The PGT will investigate if there is a report that a person lacks capacity to make decisions and that the person is "... suffering, or is at risk of suffering, serious harm..." as a result. In cases appropriate and necessary, they will apply to a court for temporary (90 day) guardianship over property and/or personal decisions. 

 

The PGT can only be appointed as guardian, if they agree and there is no other suitable and willing person.  They tend to encourage family or friends to be guardians, especially over personal decisions.

 

The PGT generally does not help a person to seek a court order for guardianship.  They may decide not to get involved in disputes between who should be appointed.

 

The PGT must be served with any court application for guardianship.  Even if they have no concerns about the plan for the management of the property or the person's care, the PGT has a duty to make legal representation available to the person alleged to be incapable of making decisions.

 

What is the Process?
An application in the Superior Court of Justice is required.  The following persons must be served and can respond:  the person alleged not to be able to make decisions; their family members; and anyone who already has authority to make decisions.  The Public Guardian and Trustee ("PGT") must also be served.

 

The assessments of the disabled persons capacity and the plan for making decisions must be included in the materials.

 

If there is no opposition, the judge will make a decision based on the material provided.  If there is opposition, the case can get complicated.

 

What is the Cost?
The costs to start the case to be appointed as a guardian can be significant.  It will included:

• the fees for the assessments (varies with the hourly rate of the assessor and the length of time the report(s) take)

• court fees to bring the proceeding

• the lawyer's fees and disbursements (ask for an estimate)

 

If you become the guardian of property and there is sufficient funds, you may be repaid from the incapable persons property.

 

Do You Need a Lawyer?
Yes.  Even if it is not opposed, the requirements are strictly enforced, technical, and complicated.