When Guardianship Isn’t The Answer: Upholding Autonomy For Persons With Diminished Capacity

In D.R. v. A.R., 2026 ONSC 796,¹ the Ontario Superior Court of Justice demonstrated that even in cases where a person has diminished capacity, the court will strive to respect the person’s right to autonomy and self-determination by finding alternatives to appointing a guardian of property. The case considered whether the Respondent had capacity to manage her property or if a guardian of property was required pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “Substitute Decisions Act”). The Court held that a guardian of property was not required because there was an alternative course of action which was less restrictive of A.R.’s decision-making rights.

The Applicants were A.R.’s three attorneys for property pursuant to a continuing power of attorney for property executed by A.R. in 2014. They include J.U. (tax advisor to R.R.), and, R. (O.) R. (child of A.R. and R.R.), and D.R. (spouse of R. (O.) R.).

Background Facts:

A.R. and her husband, R.R., accumulated substantial wealth through real property development ventures and by owning interest in a lucrative import, wholesale, and retail business. R.R. entrusted A.R. to be director of all the family companies, his sole primary attorney for property, sole executor and trustee of his estate, and sole beneficiary of his estate. When R.R. passed away in October 2024, A.R. inherited his estate. A.R.’s assets came to include two residences in Toronto, property in Florida and Israel, and valuable shares in the family companies worth tens of millions of dollars. A.R. was also the sole shareholder and director of a company called JD Inc., which had a primary asset of a judgement issued by a New Jersey Court for tens of millions of U.S. dollars.

Prior to R.R.’s death, A.R. began showing signs of incapacity. She made large cash withdrawals from the bank, made decisions which impacted who controlled the family businesses, and showed signs of poor memory and deteriorating health. In particular, the day before R.R.’s death in October 2024, A.R. gave one of their sons full control over JD Inc. and the litigation documents related to it. The attorneys for property considered this to be a breach of the terms of settlement from a previous family dispute and it was later determined at a case conference that a determination of this issue required establishing A.R.’s capacity.

Assessments of A.R.’s Capacity:

A.R. underwent three capacity assessments to determine her capacity to manage her property and her capacity to revoke a power of attorney. The first assessment took place in December 2024 and determined that A.R. was “clearly incapable of managing her own property” and that she was “extremely vulnerable to influence”. A.R. was also determined to be unable to manage the family businesses, her assets, or her personal finances, due to her capacity issues and her lack of experience with the family’s property and financial matters prior to R.R.’s death. However, the assessment also found that A.R. had insight into her situation and that she recognized her need for independent legal and financial advice. A second capacity assessment was conducted by the same physician in April 2025, which reached the same conclusion.

The third capacity assessment was conducted by a different physician in August 2025. The assessment found that A.R. was generally aware of her assets and their values, and that A.R. could recognize her limitations and need for assistance in applying the relevant information to her circumstances, given the value and complexity of her assets. Both physicians agreed that A.R. was vulnerable to undue influence and elder abuse if she did not have assistance to plan and carry out complex financial decisions.

Issues and Positions of the Parties:

The issues before the Court were whether to appoint a guardian of property for A.R. and, if so, who the guardian should be. The Applicants argued in favour of a guardian of property on the basis that A.R. was unable to manage her property given her age, lack of capacity, and susceptibility to undue influence, and that these issues existed at the time A.R. gave control of JD Inc. litigation documents to her son. The Respondent opposed the appointment of a guardian of property on the basis that A.R. is presumed to have capacity, that she had capacity to manage her property so long as she had assistance, and that there are less restrictive options than appointing a guardian of property. The Respondent also argued that she had capacity to revoke her power of attorney (and that she wanted to exercise such capacity) which had previously appointed the Applicants as her attorneys for property.

The Court’s Analysis:

Under the Substitute Decisions Act, a person will be deemed incapable of managing property if they are 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.²

The Court may, on application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.³ However, the Court shall not appoint a guardian of property if it is satisfied that the need for decisions to be made can be met by an alternative course of action that,

• does not require the Court to find the person to be incapable of managing property; and
• is less restrictive of the person's decision-making rights than the appointment of a guardian.⁴

In this case, the Court ultimately held that a guardian of property was not required because there was an alternative course of action which would be less restrictive of A.R.’s decision-making rights. Namely, that A.R. could receive assistance when making decisions about any future business, legal, and financial matter. In reaching its decision, the Court emphasized that the purpose of the Substitute Decisions Act is to protect vulnerable persons, and that this purpose ought to be balanced with the interests of litigants and the person alleged to be incapable. A.R.'s vulnerability and the state’s duty to protect her are important, but so too is her right to self-determination and autonomy.

All three capacity assessments conducted found that A.R. was vulnerable to undue influence and elder financial abuse if she did not have assistance to plan and carry out complex financial decisions. Although A.R. was found incapable of managing her property on her own, the capacity assessments generally agreed that she had the cognitive ability to process, retain, and articulate any relevant information required to manage her property, so long as she had assistance. The capacity assessments also agreed that A.R. had the capacity to retain and instruct counsel. A.R. indeed needed assistance managing her property, but the Court found that that this was not the same as her being entirely incapable of managing her property.

Furthermore, the capacity assessments found that A.R. had the capacity to revoke her previous power of attorney which appointed J.U., R. (O.) R., and D.R. as the attorneys for property. The Court found that A.R. understood what kind of property and assets she had, understood the role of an attorney for property, and understood that she could revoke a power of attorney. A.R. had also clearly expressed her discomfort with the current attorneys for property and her desire to revoke their appointment and replace them.

The Court concluded that A.R. was not incapable of managing her own property because she was able to make decisions about her property so long as she had assistance to help her make, plan, and carry out legal and financial decisions. The application was therefore dismissed. This decision suggests that courts will consider supportive or assistive measures before declaring a person incapable of managing their own property.

Footnotes

1 D.R. v. A.R., 2026 ONSC 796.

2 Substitute Decisions Act, 1992, SO 1992, c 30, s.6.

3 Substitute Decisions Act, 1992, SO 1992, c 30, s. 22(1).

4 Substitute Decisions Act, 1992, SO 1992, c 30, s. 22(3).

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