Statutory guardianship is a creature of Ontario’s Substitute Decisions Act (“SDA”).[1] It provides that the Public Guardian and Trustee (the “PGT”) may be appointed as a guardian for someone incapable of managing their property who did not grant a Continuing Power of Attorney.
This blog will highlight the key mechanisms of statutory guardianship and how it differs from standard court-ordered guardianship.
Statutory Guardianship
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,[2] certifying that the patient is incapable of managing property, the PGT de facto becomes the person`s statutory guardian.[3]
- 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.[4]
After becoming a person’s statutory guardian of property, the PGT must ensure that the person is informed 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.[5]
Under the SDA, a capacity assessment under section 16 cannot be carried out if a Continuing Power of Attorney is known to exist.[6] 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.[7]
Replacement of Statutory Guardian
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.[8] The application to the PGT must be accompanied by a management plan.[9]
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.[10] The PGT must also consider the incapable person’s wishes and the closeness of the applicant’s relationship to the person.[11] As a condition to an appointment to replace the PGT, the PGT may require the applicant post security.
If the PGT refuses the application for a replacement, there shall be written reasons given to the applicant.[12] If the applicant disputes the refusal by giving the PGT notice in writing, the PGT shall apply to the court to decide the matter.[13] It is worth noting 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 Appointment following PGT Investigation
Under the SDA, the PGT is obligated to investigate allegations 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.[14]
In F.L. v. Oliver,[15] the Ontario Superior Court considered the decisional capacity of a 67-year-old blind and hearing-impaired man, F.L.[16]
F.L. was assessed by a designated capacity assessor under the SDA who found that F.L. had never personally managed his own finances and that he was incapable of managing his property.[17] The assessor concluded that F.L. lacked the ability to realistically appraise risk and the likely outcome of decisions about his property given his belief that he was the victim of overwhelming state abuse, which in turn caused him to distrust the help that was offered and to prevent him from engaging in any meaningful way with his finances.[18]
Following the issuance of a Certificate of Incapacity, the PGT received notice and assumed statutory guardianship of F.L.’s property. Pursuant to the guardianship, F.L. received OAS, CPP, and GIS which was more than twice his previous income.[19]
Differences between Statutory Guardianship and Court Guardianship
Involvement of the Court
As noted above, statutory guardianship arises without a court order when a person is found incapable of managing property through a capacity assessment conducted by a designated capacity assessor. In this regard, statutory guardianship is generally limited to property; it is not a mechanism for making substituted decisions regarding an individual’s personal care.
Court‑appointed guardianship is made pursuant to an Order of the Court following an application. As part of this process, the applicant must file evidence of incapacity and, typically, a detailed or guardianship plan. The court considers the person’s wishes, the availability of less‑restrictive alternatives (such as powers of attorney), and whether the proposed guardian is suitable. The resulting order precisely defines the guardian’s powers and duration.
Scope of Authority
Importantly, both types of guardianship require the guardians to act as fiduciaries. Namely to act in the incapable person’s best interests, to avoid conflicts of interest and to keep accurate and contemporaneous records.
In statutory guardianship, the PGT initially manages the incapable person’s property, with a focus on preservation of assets, payment of liabilities, and meeting basic financial needs. Replacement guardians must adhere to an approved management plan and provide accounts as required. The PGT retains investigatory and supervisory functions and may seek court directions if issues arise.
In court‑appointed guardianship, the guardian’s role is defined by the order. For property, the guardian manages finances in accordance with the court‑approved management plan. For personal care, the guardian may make decisions about health care, nutrition, shelter, clothing, hygiene, and safety, again guided by prior capable wishes as well as the court-approved guardianship plan.
Concluding Comments
The PGT can be appointed in certain circumstances to manage the property of individuals found incapable of doing so. Whereas statutory guardianship touches upon similar functions and duties as a Court-appointed guardian, the mechanisms for their appointments and role are distinct under Ontario’s SDA.
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[1] Substitute Decisions Act, 1992, S.O. 1992, c. 30
[2] Mental Health Act, R.S.O. 1990, c. M.7
[3] SDA at section 15.
[4] SDA at section 16.
[5] SDA at section 16(6).
[6] SDA at section 16(2)(b).
[7] SDA at section 16.
[8] SDA at section 17(1).
[9] SDA at section 17(3).
[10] SDA at section 17(4).
[11] SDA at section 17(5).
[12] SDA at section 18(1).
[13] SDA at section 18(2).
[14] SDA at section 27.
[15] F.L. v. Oliver, 2024 ONSC 478 (CanLII).
[16] Ibid. at para 16.
[17] Ibid. at para 37.
[18] Ibid.
[19] Ibid. at para 39.
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Written by: Oliver O'Brien
Posted on: January 30, 2026
Categories: Commentary, WEL Newsletter
Statutory guardianship is a creature of Ontario’s Substitute Decisions Act (“SDA”).[1] It provides that the Public Guardian and Trustee (the “PGT”) may be appointed as a guardian for someone incapable of managing their property who did not grant a Continuing Power of Attorney.
This blog will highlight the key mechanisms of statutory guardianship and how it differs from standard court-ordered guardianship.
Statutory Guardianship
The PGT becomes an incapable person’s statutory guardian in one of two ways:
After becoming a person’s statutory guardian of property, the PGT must ensure that the person is informed 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.[5]
Under the SDA, a capacity assessment under section 16 cannot be carried out if a Continuing Power of Attorney is known to exist.[6] 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.[7]
Replacement of Statutory Guardian
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.[8] The application to the PGT must be accompanied by a management plan.[9]
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.[10] The PGT must also consider the incapable person’s wishes and the closeness of the applicant’s relationship to the person.[11] As a condition to an appointment to replace the PGT, the PGT may require the applicant post security.
If the PGT refuses the application for a replacement, there shall be written reasons given to the applicant.[12] If the applicant disputes the refusal by giving the PGT notice in writing, the PGT shall apply to the court to decide the matter.[13] It is worth noting 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 Appointment following PGT Investigation
Under the SDA, the PGT is obligated to investigate allegations 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.[14]
In F.L. v. Oliver,[15] the Ontario Superior Court considered the decisional capacity of a 67-year-old blind and hearing-impaired man, F.L.[16]
F.L. was assessed by a designated capacity assessor under the SDA who found that F.L. had never personally managed his own finances and that he was incapable of managing his property.[17] The assessor concluded that F.L. lacked the ability to realistically appraise risk and the likely outcome of decisions about his property given his belief that he was the victim of overwhelming state abuse, which in turn caused him to distrust the help that was offered and to prevent him from engaging in any meaningful way with his finances.[18]
Following the issuance of a Certificate of Incapacity, the PGT received notice and assumed statutory guardianship of F.L.’s property. Pursuant to the guardianship, F.L. received OAS, CPP, and GIS which was more than twice his previous income.[19]
Differences between Statutory Guardianship and Court Guardianship
Involvement of the Court
As noted above, statutory guardianship arises without a court order when a person is found incapable of managing property through a capacity assessment conducted by a designated capacity assessor. In this regard, statutory guardianship is generally limited to property; it is not a mechanism for making substituted decisions regarding an individual’s personal care.
Court‑appointed guardianship is made pursuant to an Order of the Court following an application. As part of this process, the applicant must file evidence of incapacity and, typically, a detailed or guardianship plan. The court considers the person’s wishes, the availability of less‑restrictive alternatives (such as powers of attorney), and whether the proposed guardian is suitable. The resulting order precisely defines the guardian’s powers and duration.
Scope of Authority
Importantly, both types of guardianship require the guardians to act as fiduciaries. Namely to act in the incapable person’s best interests, to avoid conflicts of interest and to keep accurate and contemporaneous records.
In statutory guardianship, the PGT initially manages the incapable person’s property, with a focus on preservation of assets, payment of liabilities, and meeting basic financial needs. Replacement guardians must adhere to an approved management plan and provide accounts as required. The PGT retains investigatory and supervisory functions and may seek court directions if issues arise.
In court‑appointed guardianship, the guardian’s role is defined by the order. For property, the guardian manages finances in accordance with the court‑approved management plan. For personal care, the guardian may make decisions about health care, nutrition, shelter, clothing, hygiene, and safety, again guided by prior capable wishes as well as the court-approved guardianship plan.
Concluding Comments
The PGT can be appointed in certain circumstances to manage the property of individuals found incapable of doing so. Whereas statutory guardianship touches upon similar functions and duties as a Court-appointed guardian, the mechanisms for their appointments and role are distinct under Ontario’s SDA.
—
[1] Substitute Decisions Act, 1992, S.O. 1992, c. 30
[2] Mental Health Act, R.S.O. 1990, c. M.7
[3] SDA at section 15.
[4] SDA at section 16.
[5] SDA at section 16(6).
[6] SDA at section 16(2)(b).
[7] SDA at section 16.
[8] SDA at section 17(1).
[9] SDA at section 17(3).
[10] SDA at section 17(4).
[11] SDA at section 17(5).
[12] SDA at section 18(1).
[13] SDA at section 18(2).
[14] SDA at section 27.
[15] F.L. v. Oliver, 2024 ONSC 478 (CanLII).
[16] Ibid. at para 16.
[17] Ibid. at para 37.
[18] Ibid.
[19] Ibid. at para 39.
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