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Facing Difficult Choices: An Introduction to the Guardianship Application Process

Introduction to the Guardianship Application Process

Most of us are used to taking our own agency for granted. Even despite recent frustrations with lockdown restrictions, we rarely acknowledge our overall freedom to make major life decisions – to live where we want, to buy what we want, and to do what we want with our own bodies. We usually make these decisions without much forethought, and rarely stop to consider that we may one day be unable to perform even these simple tasks.

Yet for those suffering from serious illness, traumatic brain injuries, dementia, or various other physical and/or mental ailments, the ability to make these everyday decisions may no longer be possible. In certain cases, such as with a slowly advancing illness, the person and their family may have considered this eventuality and prepared in advance. In these cases, while they are still competent to give legal instructions, these individuals may enact a Power of Attorney for Property and/or for Personal Care, wherein they can decide ahead of time who will make decisions about their possessions and their health care when they are unable to do so.

However, life does not always allow a person to prepare in advance and some people do not wish to contemplate a time when they might become incapable of making their own decisions. Unfortunately, without a Power of Attorney formally in place in advance of becoming incapable, another person can only assist and gain control of another’s personal and financial affairs through a process known as a Guardianship Application.

What is a Guardianship Application?

A Guardianship Application is a process wherein one or more people apply to become the legal guardian, or substitute decision-maker, of another person. While we typically think of guardians only caring for minors, the term also applies to an adult who is unable to make their own decisions (however parents may be required to pursue a guardianship application over their young child’s property in some circumstances or when a disabled child turns the age of majority).

Under the Substitute Decisions Act, 1992, a person over the age of 18 (or 16 in the case of health care decisions) is presumed to have the capacity to make their own choices. The Act also sets out the procedure for making a Guardianship Application before the Court for a person who loses this capacity and the standard of proof required is high. The court will review the Applicant’s sworn affidavit that outlines all evidence of the person’s incapacity, why a guardian is needed, and what the guardian’s plan would be moving forward to assist and manage the affairs of the individual if appointed. In addition to the Court’s review, the Public Guardian and Trustee, the provincial body tasked with protecting mentally incapable Ontarians, will also review and comment on the proposed guardian’s plan. Deciding someone’s future is never a role that a Court takes lightly and therefore it relies on significant input and evidence from all relevant stakeholders and interested parties.

Once a guardian is appointed, they have a tremendous control over the person’s affairs. An incapable person’s guardian will have control over their finances, including pension options and any benefits that they may be eligible for. They can pay bills or collect debts on the person’s behalf and have the power to control investments. When it comes to physical property, a guardian can purchase or sell a person’s home, vehicle, or other possessions so long as they are acting in accordance with the management plan that was filed with the court. All these activities should be done according to the incapable person’s wishes, or if those cannot be known then within their best interests.

Becoming a person’s guardian is a serious obligation that comes with a number of responsibilities. You are essentially tasked with managing the person’s affairs as though they were dependent, which means keeping their finances entirely separate and apart from your own and considering their overall health and well-being with every decision made. A guardian is also required to respect the wishes of the incapable person unless doing so would put the incapable person into financial hardship (i.e., continuing to live at home while also requiring 24-hour care, which may not be affordable for them). As a guardian, you are also responsible for fostering relationships, both with the person’s care team, as well as with their family and friends so that they can remain in contact with the person in your care.

Can the person or others object to the application?

There are cases where guardianship applications are reasonably straightforward. If it is undeniable that a person is no longer capable to make their own decisions, and a friend or family member applies to the Court with an appropriate and clear plan in place, which the Public Guardian and Trustee also supports, an application may be reasonably straightforward and likely granted.

However, one of the greatest challenges of dementia or mental illness can be an altered view of one’s own capacity. A person may be in denial about the state of their illness or believe they are competent to provide instructions when they can no longer do so in their own best interests. Alternatively, there may be more than one person who comes forward with a Guardianship Application for a person, where the applicants have different visions for how care should be provided and how the person’s finances are managed. In such cases, an application for guardianship may end up being contested and proceed to litigation. Ultimately, it will be the court that will determine if the person is incapable and/or which party or parties are in the best position to act as a guardian.

The appointment of a guardian can bring clarity to family members who may have their own opinion on how to best manage their loved one’s care and finances. It provides a court-approved plan and removes any further debate between conflicting family members by tasking one or more persons with the ultimate responsibility. Still, obtaining guardianship can be emotionally complex for a family, especially when it comes in light of a parent or loved one’s worsening health challenges.

At Pavey Law, our litigation lawyers have significant experience dealing with court-appointed Guardianship Applications throughout the Cambridge, Kitchener, and Waterloo areas. We take the time required to explain to you every step of the application process, and we pride ourselves on providing advice that takes everyone’s best interests into account. Contact us today to set up a consultation with a lawyer on our team.