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Introduction
An adult can be decisionally incapable or become so, and as a consequence be unable to manage his/her personal care. This can come as a result of many affecting issues, including injury or disease. In the absence of an attorney for personal care, it may become prudent or necessary as a matter of last resort for a guardian of the person to be appointed. Sections 55 through 68, under Part II of the Substitute Decisions Act, 1992[1] (“SDA”) provide authority for the court to appoint guardians of the person for adults incapable of personal care.
Applications as they relate to children under age 16 are governed by Part III of the Children’s Law Reform Act[2] (CLRA). They are not frequently sought in the same context as guardianships of the adult person. Also, they are not usually sought in the same circumstances where a guardianship of property for a child is required for the management of the child’s property, as contemplated by the CLRA.
1. Guardianship of the person for Adults
The Health Care Consent Act
It should be understood from the outset that it is not always necessary for someone to make a power of attorney for personal care or, in the absence of such a document, to have a guardian appointed for his/her person. Practically speaking, it is arguably prudent planning for any adult to have an attorney for personal care or, failing one, to have the ability to have a guardian of the person appointed where necessary.
The Health Care Consent Act, 1996[3] (“HCCA”) provides, at section 4(2), that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. The word “treatment” is defined in section 2(1) as, inter alia, anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment.[4]
Section 20 of the HCCA provides a hierarchy of persons who may give or refuse consent on behalf of a person who is incapable with respect to treatment. In order, these persons are:
The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
The incapable person’s representative appointed by the Consent and Capacity Board under section 33, if the representative has authority to give or refuse consent to the treatment.
The incapable person’s spouse or partner.
A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
A parent of the incapable person who has only a right of access.
A brother or sister of the incapable person.
Any other relative of the incapable person.
Section 20(2) provides that a person in the hierarchy may only give or refuse consent if he/she:
is capable with respect to the treatment;
is at least 16 years old, unless he or she is the incapable person’s parent;
is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;
is available; and
is willing to assume the responsibility of giving or refusing consent.
A person named in the hierarchy can only give or refuse consent if no one higher in the hierarchy meets the criteria in subsection (2).
If two or more persons described in the same paragraph of section 20(1) (the hierarchy) and who meet the requirements of section 20(2) disagree about whether to give or refuse consent, and if their claims rank ahead of all others, the Public Guardian and Trustee (“PGT”) shall make the decision in their stead.[5]
Section 20(6), which provides resort to the PGT, should make the merits of having an attorney for personal care or guardian of the person readily apparent. Disputes amongst family members concerning whether, when, and in what circumstances consent to a treatment should be given can potentially result in the aggravation of a medical condition or result in unnecessary suffering. These disputes most often arise when the patient’s prior capable wishes are not clear or not followed, particularly with respect to refusal of life-saving treatments and end-of-life decisions.
The decision to refuse or accept treatment by a substitute decision maker (guardian of the person, attorney for personal care, or a relative of the incapable patient) can be challenged by the patient’s health practitioner. Section 37 of the HCCA provides that the health practitioner may apply to the Consent and Capacity Board (“CCB”) for a determination as to whether the substitute decision maker’s consent or refusal has been given in accordance with the patient’s prior capable wish or best interests.[6]
Substitute Decisions Act Application Materials
Section 69(3) of the SDA prescribes the materials to be used on an application for a guardian of the person for an adult. The application must contain a notice of application to appoint a guardian of the person and the documents referred to in section 70(2) as well as those referred to in sections 71(1) and 74, if applicable. The documents referred in section 70(2) include the following:
the proposed guardian’s consent;
if the proposed guardian is not the Public Guardian and Trustee, a guardianship plan, in the prescribed form; and
a statement signed by the applicant,
(i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or
(ii) if it was not possible to give the person alleged to be incapable the information referred to in sub-clause (i), describing why it was not possible.
The optional documents in section 71(1) include one or more statements, each made in the prescribed form, by a person who knows the person alleged to be incapable and has been in personal contact with him/her during the twelve months before the notice of application was issued. If the applicant for guardianship of the person wishes for the application to be dealt with under section 77 (summary disposition), the application materials should also include two statements, each made in the prescribed form by an assessor.
The summary disposition procedure prescribed by section 77 allows a court to make an order without anyone appearing before it and without holding a hearing. To avail oneself of this process, the applicant on an application for guardian of the person, or the moving party on a motion to terminate a guardianship of the person, shall file the following:
in the case of an application, the applicant’s written certification that,
(i) no person has delivered a notice of appearance,
(ii) the documents required by Part III of the SDA accompany the application, and
(iv) in the case of an application, at least one of the statements referred to in section 74 indicates that its maker is of the opinion that the person needs decisions to be made on his or her behalf by a person who is authorized to do so;
in the case of a motion, the moving party certifies in writing that,
(i) the documents required by Part III of the SDA accompany the motion, and
(ii) every person entitled to be served with the notice of motion has filed with the court a statement indicating that they do not intend to appear at the hearing of the motion.
On considering the application or motion under section 77, the judge may,
grant the relief sought;
require the parties or their counsel to adduce additional evidence or make representations; or
order that the application or motion proceed to a hearing or order the trial of an issue, and give such directions as the judge considers just.[7]
Service of the Application
The service requirements for applications to appoint guardians of the person are set out in section 69(3) of the SDA. The persons that must be served with the notice of application, along with the documents referred to in section 70(2), and those referred to in sections 71(1) and 74, if applicable, are:
The alleged incapable person;
The attorney under his or her continuing power of attorney, if known;
His or her guardian of property, if known;
His or her attorney for personal care, if known;
The Public Guardian and Trustee; and
The proposed guardian of the person.
In accordance with section 69(6) of the SDA, the notice and the accompanying documents shall also be served on all of the following persons who are known, by ordinary mail sent to the person’s last known address:
The spouse or partner of the person who is alleged to be incapable of personal care or who is under guardianship of the person, as the case may be;
The person’s children who are at least 16 years old, in the case of an application or motion under Part II of the SDA;
The person’s parents; and
The person’s brothers and sister who have attained the age of 16.
Capacity to Make Personal Care Decisions
The criteria for incapacity for making personal care decisions are set out in section 45 of the SDA:
A person is incapable of personal care if he or she 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.
A person may be capable of making some of the named personal care decisions but not others.
The Role of the Public Guardian and Trustee
Once served with a guardianship application, the PGT will likely respond with any concerns and with its position. For example, if the application does not contain sufficient medical evidence of the person’s incapacity, and an assessment of capacity is being sought, the PGT may propose that further medical evidence be produced in order to determine the merits of the allegation of incapacity first, before any order is made that the person go through a capacity assessment. It is frequently the case that two or more of the allegedly incapable person’s family members would seek to be appointed sole guardian. The PGT may provide a position as to which applicant it favours, and the reasons for the preference. The PGT will likely provide its position as to the merits of the proposed guardianship plan.
If a settlement is reached in a guardianship proceeding, the PGT’s position on the proposed settlement should be sought and provided to the court on the motion to approve the settlement.
2. Guardianship of the Person respecting Children
General Comments
In Ontario, parents are automatically guardians of the person of their minor children. A “guardian of the person” is described as “custody” in Ontario legislation. The mother and father of the child are equally entitled to custody of the child.[8] Both parents have the rights and responsibilities as a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.[9] These rights and responsibilities relate to decisions over the child’s education, religion and health care.
Applications for guardianship of minor children are brought under Part II of the CLRA. Among others, the purpose of Part II of the CLRA is to ensure that applications in respect of the custody and guardianship of children will be determined on the basis of the best interests of the child.[10]
Section 24 of the CLRA requires the court to make custody orders in the best interests of the child, whether the order is of a temporary or final nature. The relevant criteria are set out in section 24(2):
The court shall consider all the child’s needs and circumstances, including,
the love, affection and emotional ties between the child and,
each person entitled to or claiming custody of or access to the child,
other members of the child’s family who reside with the child, and
persons involved in the child’s care and upbringing;
the child’s views and preferences, if they can reasonably be ascertained;
the length of time the child has lived in a stable home environment;
the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
the permanence and stability of the family unit with which it is proposed that the child will live;
the ability of each person applying for custody of or access to the child to act as a parent; and
the relationship by blood or through an adoption order between the child and each person who is a party to the application.
As with guardianship applications for incapable adults, the court has authority to order that more than one person be appointed guardian of the person for the child. The courts do not expect communication between the co-guardians to be easy, comfortable, or free of conflict. The question is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.[11]
The courts recognize that the needs of very young children and special needs children are especially complex. With respect to those children in particular, if joint custody is to be ordered, there must be evidence of good communication as between the proposed co-guardians.
Two Ontario cases illustrate this point.
In Kaplanis v Kaplanis[12] the subject child was only one year and nine months old at the time of the custody hearing. In the appellate decision, the court noted that her parents’ marriage was tumultuous and that they could not communicate with each other. The court held that there must be some evidence that, despite their differences, the parents could communicate effectively with one another. When the child is so young that she can hardly communicate her developmental needs, communication is even more important – the younger the child, the more important communication is.[13] In this case the court set aside the joint custody order and awarded sole custody to the mother.
Ciutcu v Dragan[14] dealt with motions seeking temporary custody of two minors, aged nine and eight. Both children had Autism Spectrum Disorder and were severely disabled. They were both non-verbal and had a limited ability to comprehend speech and communicate with other people. The court held that the reasoning in Kaplanis with respect to good communication applies, if not even more, to special needs children. For these children, important decisions frequently have to be made about medical treatment, supportive services, education and activities. They require stability and consistency in decision making, and conflict can be particularly harmful to them. In this case, the mother was awarded temporary sole custody. She was required to consult with the father on any major decision regarding the children and to keep him apprised of any medical directions, treatment or prescriptions required for the children.
Compensation for the Guardian of the Person under the SDA
The SDA does not provide a compensation scheme for guardians of the person. This is in contrast to guardians of property and attorneys for property, who may take annual compensation in accordance with the prescribed fee scale.[15]
The guardian of the person is required to maintain a record of all decisions made regarding the incapable person’s health care, safety and shelter, as well as medical reports, names of persons consulted and a description of the incapable person’s wishes. The regulation and the SDA do not specifically require any form of financial accounting on the part of the guardian of the person, even if these expenditures relate to the incapable person’s health or personal care. Nonetheless, on passing of accounts applications courts have entertained requests for, and granted, compensation on a quantum meruit or fee-for-services basis for certain guardians of the person.
Three leading cases in Ontario address the issue of compensation for guardians of the person and attorneys for personal care: Brown, Re,[16] Cheney v Byrne (Litigation Guardian of)[17] and Kiomall v Kiomall.[18] The cases follow the principles delineated in Brown, Re, namely:
There is no statutory prohibition against such compensation;
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 prevent the court from awarding and fixing it;
Section 32(12) of the SDA does not oust the application of section 61(1) of the Trustee Act as a basis for awarding compensation to a guardian;
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;
The court routinely deals with claims for compensation for work done or services rendered in a variety of situations and there is no reason in the absence of any statutory prohibition for rejecting such claim simply because it is made by a committee of the person;
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 the 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;
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;
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 the factors that will have to be considered, depending on the context in question; and
There must be some evidentiary foundation to support the claim for compensation.
The court’s discretion is wide when fixing compensation for guardians of the person.
In Osmulski Estate v Osmulski,[19] the court addressed the issue of compensation for a guardian of the person on an application to pass accounts by the applicant son, who was the guardian of the person and of property for his incapable mother. The accounts covered a 10-year period. The applicant had nine other siblings. None of them applied to be the guardian. The applicant managed his mother’s finances and personal care on his own and with the assistance of his wife. During the period of the applicant’s guardianship, the incapable person resided exclusively in long-term care facilities. She suffered from dementia and was in a wheelchair.
The court was critical of the applicant’s record keeping and found him to have breached his fiduciary duty in several instances. The applicant was also found to have helped himself to his mother’s money and treated it as though it were his own. With respect to the applicant’s claim for compensation in the personal care arena, the court made the following observations:
The applicant did nothing extraordinary in his capacity as a guardian for personal care. He did the essentials of what was required and nothing else. There was no fault in his work but also nothing that merited any extra compensation;
All his claims for extra compensation arising from his actions as guardian for personal care were unfounded and unproven;
The incapable person’s affairs were relatively straightforward to administer from a personal care perspective; and
The applicant’s evidence as to what he did as a guardian of the person was deficient. His evidence lacked particularity and there was no record of the hours he spent.
In reviewing this and other cases on compensation for guardians of the person and attorneys for personal care, one is left with the impression that this is not something to be routinely asked for and that to have any chance at getting compensation, one must bring a robust evidentiary record to the court.
In the recent case of Childs v Childs,[20] the court commented that the guardian of the person is a manager of personal care; he or she is not the primary care provider. The court reviewed the principles in Brown, Re and confirmed that it has authority to award compensation to guardians of the person. In that instance, the court found a small monthly stipend, plus room and board and disbursement of expenses directly related to the incapable person’s care, to be reasonable.
Guardianships of the person for an adult are to be considered as a measure of last resort and only in circumstances where there is no other less restrictive alternative. The HCCA goes a long way to minimizing the need or requirement for a guardian of the person. Guardianships of the person of a child are less common but exist subject to the provisions of the CLRA, and importantly are not usually sought in the circumstances contemplated herein. One should pay careful attention to the age provisions set out in the SDA and CLRA.
A guardianship plan for the person must accompany a guardianship application and must be court approved.
Form 3 – Guardianship Plan
The guardian must then act in accordance with the court approved plan. The procedural requirements of the guardianship of the person application are set out in the governing legislation the SDA or the CLRA as the case may be, and in the Ontario Rules of Civil Procedure, which must be complied with. Guardianship plans may range in complexity depending on the particular needs and circumstances of the person, and may need to be updated or altered from time to time as that person’s needs and circumstances change. Certain other steps may need to be taken in preparing an appropriate guardianship plan, such as decisional capacity assessments, needs assessments and other medical professional guidance and direction.
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[1] SO 1992, c 30.
[2] RSO 1990, c C.12.
[3] SO 1996, c 2, Sched A.
[4] The definition of “treatment” is dealt with in the Supreme Court of Canada decision in Cuthbertson v. Rasouli, [2013] 3 SCR 341. At paragraph 33, Chief Justice Beverly McLaughlin states that the provision of life support constitutes treatment under the HCCA and therefore requires consent.
[5] HCCA, supra note 3, s 20(6).
[6] See HCCA section 21 for the principles in accordance with which the substitute decision-maker must give or refuse consent on an incapable person’s behalf.
[7] Ibid, section 77(3).
[8] CLRA, supra note 2, s 20(1).
[9] Ibid, s 20(2).
[10] Ibid, s 19(a).
[11] Warcop v Warcop, 2009 CanLII 6423 (Ont SC) at para 94, 66 RFL (6th) 438.
[12] 2005 CanLII 1625, 249 DLR (4th) 620 (Ont CA).
[13] Ibid at para 12.
[14] 2014 ONCJ 602.
[15] SDA, supra note 1, s 40.
[16] 1999 CarswellOnt4628, 31 ETR (2d) 164 (SC).
[17] 2004 CarswellOnt 2674 (SC).
[18] 2009 CarswellOnt 2246 (SC).
[19] 2014 ONSC 6370.
[20] 2015 ONSC 4036.
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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.
