When a loved one has been in an accident, there are several things going through your mind. One of which might be, "can they make decisions for themselves?" When a loved one is in an accident and is found to be incapable of making decisions, a guardian needs to be appointed. This series of blogs will discuss all elements of guardianship including appointing a guardian, guardianship during litigation, and guardianship after receiving a settlement.
When a Guardian is appointed
A guardian is appointed when someone does not have the mental capacity to make decisions for themselves. When this happens, a guardian is appointed to protect and assist in making decisions. A person does not need to be in an accident for a guardian to be appointed, and mental incapacity can be for reasons such as mental illness, age, or other disabilities.
What is Capacity?
Before appointing a guardian, capacity must be evaluated. When someone is an accident, they may lack the mental capacity to make decisions and critically think for themselves. As such, a guardian is required.
To evaluate capacity, several assessments are completed to determine whether an individual has a comprehensive understanding of what is happening. These assessments focus on two main areas:
- Can the person understand the facts of the situation to make a reasonable and comprehensive decision?
- Does the individual understand the consequences of the decisions made?
A misconception is that if a person lacks capacity, they are unable to make decisions in any area. This is not necessarily true, and a person may have capacity in one area but lacks capacity in another. Because of that, a multitude of assessments are completed to determine where an individual lacks capacity.
Types of Guardianship
There are two types of guardianships available, (1) property and (2) person. Guardians can be appointed for either of these areas and they can act as a substitute decision maker for someone who is mentally incapable. A different person can be appointed for guardianship of property and guardianship of person. Because of that, a court will consider the factors of each specific situation and may decide to appoint separate guardians.
Guardianship of Property
Guardianship of property involves taking care of all the personal property of the mentally incapable. This includes finances and bank accounts, real estate, and any assets the person may have. The guardian will also have the responsibility of filing tax returns, dealing with any bill payments, managing any legal actions, and handling anything that effects the day-to-day of the persons property.
A guardian of property holds a great deal of responsibility, and so it is important to be aware of the requirements when making an application for guardianship.
A guardian of property cannot make personal care decisions, such as health care decisions, they cannot sell any property that is subject to the mentally incapable's will, with some exceptions, and cannot make or modify a will on the mentally incapable persons behalf.
Guardianship of Person
Guardianship of person involves taking care of a person's care. This means the guardian will make decisions regarding health care and medical treatments, living arrangements, ensuring the person is safe, and overseeing the persons day-to-day needs.
Because guardianship of a person deals with such personal decisions, it is important the guardian knows the persons preferences and values.
How to Appoint a Guardian
In Ontario, to appoint a guardian, an assessment must be completed and then an application to the court must be submitted. Once someone is found mentally incapable, an application must be submitted to the Ontario Superior Court under the Substitute Decisions Act, 1992 (SDA) for a guardian to be appointed.
When brining an application for guardianship, certain elements must be proved:
- The person lacks capacity (as per the assessment above).
- The person needs a guardian.
- If applying for guardianship of property, who the guardian should be and what their plans are for the management of the persons finances and property. This is accomplished through a Management Plan.
- If applying for guardianship of personal care, how personal care decisions will be made through the use of a Guardianship Plan. When applying for guardianship of personal care, medical evidence is typically required to prove incapacity and will typically include an assessment from a capacity assessor.
If the person already has an assigned guardian, a spouse, partner, or relative can apply to replace the guardian with the Office of the Public Guardian and Trustee (OPGT).
When applying to be a guardian, applications must be served on the incapable person, their immediate family, and if applying to replace a guardian, the application must also be served on the OPGT.
The Substitute Decisions Act has implemented safeguards to ensure a guardian is not taking advantage of the mentally incapable:
- If there is a less invasive alternative available to appointing a guardian, the SDA will give preference to that arrangement. For example, if there is already an existing power of attorney that is sufficient for assisting the person in making decisions, the SDA will enforce the power of attorney rather than assigning a guardian.
- As per Schleifer v. Schleifer, the guardian must act diligently and in good faith. This is achieved through the guardian explaining their powers and duties to the incapable person, making personal decisions per the Health Care Consent Act, and if the person has express wishes, the guardian must uphold those wishes.
- If acting as a guardian for property, the guardian is required to apply to "pass" accounts, which means to obtain the Court's approval of the executor's account. This application must be served on the incapable person, their immediate family, and if necessary, on the OPGT.
- Section 3 of the SDA allows an incapable person to be represented by an independent counsel. This means the counsel does not also represent the guardian. The role of the independent counsel is to ensure the mentally incapable person's best interests and personal preferences are considered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
