Guardianship of the Person

i. Court appointment

A guardian of the person will be appointed where an individual is incapable of personal care. Notably, a finding of incapacity to manage one of the mandated categories of personal care is not a finding that a person is incapable of all. Section 55(1) of the SDA provides that a court may appoint a guardian of the person where:

1. the person is found to be incapable of personal care; and
2. the incapacity results in a need to have decisions made on his/her behalf by a person who is authorised to do so.

Under section 45 of the SDA, a person is incapable of personal care if:

the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Partial guardianships have been viewed as a way of protecting the dignity of those found to have some type of incapacity relating to their personal care who at the same time are still partially able to care for themselves.

The court may make an order for partial guardianship of the person if the court finds that the incapable person is only incapable with respect to some but not all or the functions referred to in section 45 of the Act.^[1] Any court order tied to guardianship of the person shall specify whether it is full or partial.^[2] In addition, the court may make the appointment for a limited period of time or impose conditions to the guardianship as it sees fit.^[3]

Similar to the provisions for a guardian for property, a guardian for personal care may not be a person who provides health care, residential, social, training or support services to the incapable person for compensation. The only exceptions are where the person providing the services is a power of attorney for personal care, the incapable person’s guardian of property, the continuing power of attorney for property or the court is satisfied there is no one else who could be the guardian for personal care.^[4]

Where the guardianship is not applied for under the summary procedure, the court shall consider the following when appointing a guardian for personal care:

1. whether the proposed guardian is an attorney under a continuing power of attorney for property;
2. the incapable person’s current wishes (if they can be ascertained); and
3. the closeness of the relationship of the applicant to the incapable person, and if the applicant is the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.^[5]

An application for guardianship of the person requires the consent of the guardian, evidence of incapacity and that a guardianship plan be filed with the court. The plan explains what the guardian will do if appointed to care for the incapable person. The guardian has an obligation to encourage the independence of the incapable person where it is feasible. A plan of guardianship is in a prescribed form,^[6] and may be amended with the approval of the PGT.^[7]

ii. The guardian’s powers and obligations

Where there has been a court order for full guardianship, the guardian may:

1. exercise custodial power over the person under the guardianship, determine his or her living arrangements and provide for his or her shelter and safety;
2. be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers;
3. settle claims and commence and settle proceedings on the person’s behalf, except claims and proceedings that relate to the person’s property or to the guardian’s status or powers;
4. have access to personal information, including health information and records, to which the person could have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person’s property or to the guardian’s status or powers;
5. on behalf of the person, make decisions to which the Health Care Consent Act, 1996^[8] applies, and make decisions about the person’s health care, nutrition and hygiene;
6. make decisions about the person’s employment, education, training, clothing and recreation and about any social services provided to the person; and
7. may exercise the other powers and perform the other duties as stated in the court order.^[9]

For partial orders for guardianship of the person, the court shall specify which functions the person is found to be incapable of and the guardian may exercise the powers that are specified in the order.^[10]

The guardian of the person has variously imposed statutory obligations to ensure the incapable person’s friends and loved ones have involvement in the persons care.

A guardian must encourage the person to participate to the best of his or her abilities in the guardian’s decisions on his or her behalf.^[11] The guardian shall seek to foster regular personal contact between the incapable person and their supportive family members and friends.^[12]

A guardian shall consult with supportive family members and friends of the incapable person and the persons from whom the incapable person receives personal care.^[13] A guardian must make sure to choose the least restrictive and intrusive course of action that is available.^[14]

The guardian of the person is required to keep records of decisions made by the guardian on the incapable person’s behalf and must act in accordance with the guardianship plan.^[15]

iii. Compensation

There is no scheduled or legislated compensation scheme for a guardian of the person like there is for a guardian for property. However, case law indicates that as there is no prohibition against compensation for services rendered for personal care there is no reason to construe the SDA as preventing the court from ordering compensation.

The courts in Ontario have ruled that there is jurisdiction to award compensation for bona fide services provided to the incapable person provided there is adequate evidence of the nature and extent of the services.^[16] In Sandhu (Litigation Guardian of) v Wellington Place Apartments, the court cited the decision in Cheney v Byrne for the proposition that guardians of the person could be compensated. The court in Sandhu awarded costs to a guardian of the person who would be providing guardianship services on a regular basis as part of a damage award to a seriously injured minor.^[17]

In the more recent decision of Childs v Childs the Superior Court considered a daughter’s claim for compensation as a result of the personal care she provided for her incapable mother in the attorney and guardianship context. While the court held that a child should not be paid to care for an ailing mother, the court drew a distinction between care that is provided when a child acts as a primary care attendant and the services a child provides in managing an incapable person’s personal care. The court awarded compensation to the guardian for personal care on the basis that the guardian would have to manage the services her mother received and the care givers provided to her mother.^[18]

The court in Childs supported the principle that compensation may be awarded for personal care where the services performed were a benefit to the incapable person and the amounts claimed are demonstrably reasonable. The reasonableness of the amount of compensation awarded to a guardian of the person must be assessed in the context of the specific financial circumstances of the incapable person. The amount awarded must not only be reasonable in relation to the services performed, it must be proportional to the means of the incapable person. Its payment should not pose a risk to the overall financial affairs of the incapable person.^[19]

The factors as outlined by Justice McDermid in Brown (Re) provide a helpful overview of how courts view compensation for guardians of personal care. The court stated at para 4:

1. There is no statutory prohibition against such compensation to which I was directed;
2. The fact that the Legislature has not passed a statute or regulation providing for the payment of compensation to a guardian of the person or fixing the manner in which it is to be calculated does not, in my opinion, prevent the court from awarding and fixing it.
3. I do not believe that s. 32(12) of the Substitute Decisions Act ousts the application of s. 61(1) of the Trustee Act as a basis for awarding compensation to a guardian. However, the use of the word “estate” in the latter section implies a guardian of property rather than a guardian of the person.
4. In any event, I believe that the court does have jurisdiction to award compensation for legitimate services rendered by a committee of the person to an incapable person so found, provided that there is sufficient evidence about the nature and extent of the services provided and evidence from which a reasonable amount can be fixed for compensation.
5. The court routinely deals with claims for compensation for work done or services rendered in a variety of situations and I see no reason, in the absence of any statutory prohibition, for rejecting such a claim simply because it is made by a committee of the person.
6. Compensation for services rendered by a committee of the person must be determined differently from that awarded to a committee of property. In the latter case, traditionally, courts have awarded compensation based upon a percentage of the value of the property administered. That method does not lend itself to fixing fair compensation for services rendered by a committee of the person.
7. The hallmark of such compensation must be reasonableness. The services must have been either necessary or desirable and reasonable. The amount claimed must also be reasonable.
8. The reasonableness of the claim for compensation will be a matter to be determined by the court in each case, bearing in mind the need for the services, the nature of the services provided, the qualifications of the person providing the services, the value of such services and the period over which the services were furnished. This is not meant to be an exhaustive list but merely illustrative of factors that will have to be considered, depending upon the context in question.
9. There must be some evidentiary foundation to support the claim for compensation.
10. Court appointment procedure

An application to appoint a guardian of the person for an incapable person must include:

1. the proposed guardian’s consent;
2. a guardianship plan in the prescribed form (if the guardian is not the PGT); and
3. a statement signed by the applicant, indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application. The statement must describe the manner in which the person was informed, or if it was not possible to give the person alleged to be incapable the information, then it must describe why it was not possible to do so.^[20]

In an application to appoint a guardian of the person the following parties must be served with the application material:

1. the person alleged to be incapable of personal care;
2. the attorney under his or her continuing power attorney, if known;
3. his/her guardian of property, if known;
4. his/her attorney for personal care, if known;
5. the PGT; and
6. the proposed guardian of the person.^[21]

The notice of application and accompanying documents shall also be served on all of the following persons by ordinary mail sent to the person’s last address:

1. the spouse or partner of the person who is alleged to be incapable;
2. the person’s children who are at least 16 years;
3. the person’s parents; and
4. the person’s brothers and sisters who are at least 16.^[22]

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^[1]             SDA, supra note 1, s 60(1).

^[2]             Ibid s 58(3).

^[3]             Ibid s 58(2).

^[4]             Ibid ss 57(1), 57(2), 57(2.1), 57(2.2).

^[5]             Ibid s 57(3).

^[6]             O. Reg. 26/95 Form 3.

^[7]             SDA, supra note 1, s 66(16).

^[8]             SO 1996, c 2, Sched. A.

^[9]             SDA, supra note 1, s 59(2).

^[10]           Ibid, s 60.

^[11]           Ibid, s 66(5).

^[12]           Ibid, s 66(6).

^[13]           Ibid, s 66(7).

^[14]           Ibid, s 66(9).

^[15]           Ibid, ss 66(4.1) and (15).

^[16]           Cheney v Byrne, [2004] O.J. No. 2773, 9 E.T.R. (2d) 164 (SC); Brown (Re), [1990] OJ No 5851, 21 ETR (2d) 164 (SC).

^[17]           Sandhu (Litigation Guardian of) v Wellington Place Apartments, [2006] OJ No 2448 (SC).

^[18]           Childs v Childs, 2015 ONSC 4036 at paras 33, 45, 46.

^[19]           Ibid at para 31.

^[20]           SDA, supra note 1 s 70(1).

^[21]           Ibid s 69(3).

^[22]           Ibid s 69(6).

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.