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Guardianship Weekly – Week 5: Statutory Guardianship, What is it?

Statutory Guardianship

A statutory guardianship does not require the court appointment of the guardian. The guardianship is predicated on the basis that the incapable person has not granted a continuing power of attorney for property to anyone.

The PGT becomes an incapable person’s statutory guardian in one of two ways: First, if a person is a patient in a psychiatric facility and a certificate is issued under the Mental Health Act certifying that the patient is incapable of managing property, the PGT de-facto becomes the person`s statutory guardian.[1] Second, if a capacity assessor issues a certificate of incapacity stating that the person is incapable of managing property, the PGT becomes the person’s statutory guardian of property.[2]

It is important to realise that if the allegedly incapable person refuses the capacity assessment then the statutory guardianship cannot proceed and a court application will be necessary.[3]

After becoming a person’s statutory guardian of property, the PGT must ensure that the person is informed, in a manner that the PGT considers appropriate, that the PGT has become the person’s statutory guardian of property and that the person is entitled to apply to the Consent and Capacity Board for a review of the assessor’s finding that the person is incapable of managing property.[4]

Under the SDA a capacity assessment under section 16 cannot be carried out if a Continuing Power of Attorney is known to exist.[5] If a capacity assessment takes place and the person is found to be incapable of managing property then subsequently a power of attorney is found, the statutory guardianship is terminated and the attorney becomes the statutory guardian, once the power of attorney document and a written undertaking signed by the attorney to act as set out in the power of attorney are provided to the PGT.[6]

An incapable person’s spouse or partner, a relative, an attorney under a continuing power of attorney or a trust corporation (if the incapable person’s spouse consents in writing) may apply to the PGT to replace the PGT as statutory guardian.[7] The application to the PGT must be accompanied by a management plan.[8]

The PGT shall appoint the applicant as the incapable person’s statutory guardian of property if the PGT is satisfied that the applicant is suitable to manage the incapable person’s property and that the management plan is appropriate.[9] The PGT must also consider the incapable person’s wishes and the closeness of the applicant’s relationship to the person.[10] As a condition to an appointment to replace the PGT, the PGT may require the applicant post security. However, the court may order on an application that security be dispensed with or that the amount of security be reduced and subject to conditions.

If the PGT refuses the application for a replacement, there shall be written reasons given to the applicant.[11] If the applicant disputes the refusal by giving the PGT notice in writing, the PGT shall apply to the court to decide the matter.[12] It must be remembered, however, that a person can always bring a guardianship application to unseat the statutory guardian and is not restricted to applying to the PGT as a replacement.

Temporary Guardianship under the SDA

Under the SDA, the PGT is obligated to investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur. If as a result of the investigation the PGT has reasonable grounds to believe that the prompt appointment of a temporary guardian of property is required to prevent serious adverse effects, the PGT shall apply to the court for an order appointing it as temporary guardian of property. The court may appoint the PGT as temporary guardian for a period not exceeding 90 days.[13]

In a judgment that is reported as a schedule to another judgment in Brown v Glawdan, the court appointed the PGT as temporary guardian on its own accord.[14]

[1]             SDA, supra note 1, s 15.

[2]             Ibid, s 16.

[3]             Ibid, s 78.

[4]             Ibid, s 16(6).

[5]             Ibid, s 16(2)(b).

[6]             Ibid, s 16.1.

[7]             Ibid, s 17(1).

[8]             Ibid, s 17(3).

[9]             Ibid, s 17(4).

[10]           Ibid, s 17(5).

[11]           Ibid, s 18(1).

[12]           Ibid, s 18(2).

[13]           Ibid, s 27.

[14]           Brown v Glawdan, [1998] OJ No 5309 (SC).

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