Usually, a power of attorney document will be used when a person becomes incapable. However, if that person did not have a power of attorney for property or personal care before they became incapable, a decision maker may have to be appointed by the court under the Substitute Decisions Act. This is known as a guardianship application.
Guardians can be appointed to make personal care decisions for the incapable person or to make property decisions for the person. One person can be a guardian for property or a guardian for personal care or both. In some situations, it may be beneficial to have two or more people acting in these roles.
A prospective guardian for property must apply to the court and provide the court with a management plan setting out the assets and liabilities of the incapable person and the proposed plan for dealing with the person’s assets and debts. A prospective guardian for personal care must provide the court with a guardianship plan setting out the incapable person’s current living situation, and any health care treatments or social supports they have, as well as information about their education and background. In each case, the prospective guardian must also set out any known wishes or directions given by the incapable person while capable and must provide their short and long term goals for decision making on behalf of the incapable person.
To grant guardianship, the court must be satisfied that the subject of the application is incapable and that the applicant is an appropriate person to make property and personal care decisions for the incapable person. This requirement is usually met by sworn written evidence provided by the applicant and with an assessment report prepared by a certified capacity assessor.
When appointing a guardian for property the court will consider:
- Whether the proposed guardian is the attorney under a continuing power of attorney;
- The incapable person’s current wishes, if they can be ascertained; and
- The closeness of the relationship of the proposed guardian to the incapable person.
Different considerations apply to the appointment of a guardian of the person. The court will only appoint a guardian of the person if it is satisfied that the need for decisions will not be met by an alternative course of action that:
- Does not required the court to find the person to be incapable of personal care and
- Is less restrictive of the person’s decision making rights than the appointment of a guardian.
Further, if the court finds that the person is capable of making some, but not all, personal care decisions they may make an order for partial guardianship and specify the types of decisions that the guardian can make. If the court is satisfied that the individual cannot make any personal care decisions, the court may make an order for full guardianship.
When the court makes an order for full guardianship, the guardian has the power to:
- Exercise custodial powers over the incapable person, including determining her living arrangements and providing for her shelter and safety;
- Be the person’s litigation guardian in any lawsuit other than one which relates to the person’s property or to the guardian`s status or powers;
- Settle claims and commence and settle proceedings on the person’s behalf, other than claims and proceedings which relate to the person’s property or to the guardian’s status or powers;
- Have access to personal information, including health information, to which the incapable person would be entitled if capable. The guardian may also consent to the release of that information to others;
- Make any decision on behalf of the person to which the Health Care Consent Act, 1996 applies;
- Make decisions about the incapable person’s health care, nutrition and hygiene;
- Make decisions about the person’s employment, education, training, clothing, recreation and about any social services provided to the person;
- Exercise any other powers or duties that are specified in the order appointing the guardian.
Once appointed, a power of attorney for property or a guardian for property has very broad powers – they may do anything that the incapable person could have done with their property while capable, except make a will.
Guardians have duties that they owe to the incapable person. Guardians for property are fiduciaries, meaning that they must act only in the best interests of the incapable person. Fiduciaries are held to a high standard by the courts. Guardians for property must also exercise their powers and duties diligently and with honesty, integrity and good faith. They must not make decisions which will benefit themselves, but must think always of what is best for the incapable person.
Guardians for property must also manage property in a way that is consistent with decisions concerning the person’s personal care that are made by the person who has the authority to make the personal care decisions. If property and personal care decisions are divided between two or more people, these people should be open with one another about the decisions which are being made to ensure that they are making the best decisions for the incapable person.
Like guardians for property, guardians for personal care must also exercise their powers and duties diligently and in good faith. When making non-health care related decisions the guardian must act in accordance with any known wishes or instructions made by the incapable person while they were capable. If no wishes or instructions are known, then the guardian must make a decision that is in the incapable person’s best interests. The guardian must consider:
- The values and beliefs that the incapable person held while capable
- The incapable person’s current wishes, if ascertainable
- Whether the guardian’s decision is likely to:
- Improve the quality of the person’s life
- Prevent the quality of the person’s life from deteriorating or
- Reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate
- Consider whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
When making health care related decisions, guardians must be mindful of the Health Care Consent Act.1 This act allows an incapable person’s substitute decision maker (such as a guardian or attorney for personal care) to consent to treatment on their behalf.2
Guardians for property and personal care must also explain to the incapable person what their powers and duties are. They must encourage the incapable person to participate in decision making to the best of their abilities. Finally, while the guardian has the ultimate decision making authority, they have a duty to consult the incapable person’s supportive friends and family members.
The Role of the Public Guardian and Trustee
The Public Guardian and Trustee (“PGT”) must be notified in all guardianship applications. The PGT is the government entity responsible for the well-being of incapable individuals in the province. The PGT maintains a registry of all individuals for whom the court has appointed a guardian. The PGT may also be appointed as a guardian for an incapable individual. Generally, the PGT is known as the “decision maker of last resort”; they will only be appointed if there is no other family member or friend who is able to act on the incapable person’s behalf.
The PGT also has an important role to play in protecting incapable people from abuse by their guardians or attorneys. The PGT investigates allegations of abuse and can seek to remove an attorney or guardian if they find that they are abusing their position.
In a guardianship application, the PGT has the right to take a position on the suitability of the proposed guardian and to appear on the court application.
1 S.O. 1996, c. 2, Sched. A
2 If there is no guardian or attorney for personal care, the Health Care Consent Act sets out a hierarchy of who has the authority to make decisions on the person`s behalf in s. 20(1). Consent may be given first by, the person`s partner or spouse, then the person`s child or parent, so long as they have the right to give or refuse consent, then a brother or sister, and finally, any other family member.