A “guardian of the person” may be appointed when an individual is determined to be incapable of making personal care decisions and there is no attorney under a power of attorney for personal care. Unlike a guardian for property, there are no statutory guardians of the person and such a guardian will only be appointed by the court. A court can appoint a guardian of the person for an incapable person, for example where there is no power of attorney for personal care or where the appointed attorney resigns or becomes incapable and in circumstances where the court is satisfied there is not less restrictive option.

CAPACITY TO MAKE PERSONAL CARE DECISIONS

The standard of assessment to be applied to establish requisite capacity to make personal care decisions is found at section 45 of the SDA. The factors to be applied for determining the capacity required for managing personal care are:

The ability to understand the information that is relevant to making a decision relating to his or her own health care, nutrition, shelter, clothing, hygiene or safety; and

The ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

A person who is 16 years of age or older is presumed to be capable of making personal care decisions.^[1]

As there are various tasks that are covered by “personal care,” a person may be capable with respect to one or more personal care decisions, and not capable with respect to others. The court has the power to order a capacity assessment with respect to personal care decisions pursuant to s. 79 of the SDA.

Capacity to make personal care decisions can only be assessed by a qualified assessor, as defined under the SDA and the applicable regulations. Unless an assessment is ordered by a court, an individual has the right to refuse to be assessed, and still even then may refuse. The principle of the careful protection of an individual’s dignity and autonomy as found in Re Koch, supra hold equally for personal care decision making.

A court must be satisfied and make a finding that a person is incapable of making decisions in at least one aspect of their personal care before a guardian of the person will be appointed. As with a guardian for property, the court will not appoint a guardian of the person if the need for making personal care decisions can be met by an alternative course of action that does not require the court to find the person incapable of personal care, or there is a less restrictive option for the person’s decision-making rights.

MINORS

Being a minor renders one incapable in the eyes of the law with respect to personal care decisions. An individual who is less than 16 years old is “incapable” of making such decisions. However, in Ontario, a parent is automatically the “guardian of the person” of his/her minor child.

Being a guardian of the person for a minor is described as having “custody” in Ontario legislation. The mother and father of the child are equally entitled to custody of the child. Both parents have the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. These rights and responsibility relate to decisions over the child’s education, religion, and healthcare.

—

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

—

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.