When a person becomes incapable of managing his or her property (including real estate and all other financial assets), where there are assets and income that need to be managed on behalf of that incapable person, and where there is no less restrictive means of addressing the situation (such as a valid power of attorney for property), then a person can apply to the Ontario Superior Court of Justice to be appointed by the court as the incapable person’s guardian of property. Similarly, where a person becomes incapable of making his or her own personal care decisions (health care, shelter, safety, nutrition, clothing, hygiene), where there are personal care decisions that actually need to be made, and where there is no less restrictive means of addressing the situation (such as a valid power of attorney for personal care), then a person can apply to the court to be appointed as the incapable person’s guardian of the person. Individuals can become incapable of making their own decisions as a result of illness, brain injury, or dementia.
These applications require a sworn affidavit to be filed with the court which provides evidence of the person’s incapacity, the need for a guardian, who the guardian should be, and what that proposed guardian’s plans are with respect to the management of the person’s finances (to be set out in a Management Plan in the prescribed form) and with respect to the manner in which personal care decisions will be made (to be set out in a Guardianship Plan in the prescribed form).
Guardianship applications must be served on the alleged incapable person, all immediate family members of the alleged incapable person, and The Public Guardian and Trustee (where the alleged incapable person is an adult) or The Children’s Lawyer (where the alleged incapable person is a minor).
The process for bringing a guardianship application for an alleged incapable adult persons and the duties of a guardian are set out in the Substitute Decisions Act, 1992. This legislation lays its foundation on the principle that all individuals over the age of 18 are presumed to be capable of managing property and all individuals over the age of 16 are presumed to be capable of making personal care decisions. A finding of incapacity and appointment of a guardian by the court is not done lightly as it is a significant elimination of a person’s autonomy and right to make his or her own decisions. Accordingly, the legislation provides a strict application process that must be followed and, in cases where a guardian is ultimately appointed, there are explicit duties and rules that the guardian must abide by in acting as a fiduciary for the incapable person. For a summary of the role and duties of a guardian of property and a guardian of the person see our Information Sheets.