In Harvey v. The Public Guardian and Trustee et al.[1], the Ontario Superior Court of Justice considered a motion under s. 28 of the Substitute Decisions Act, 1992 (“SDA”) to terminate a guardianship of property. The case offers a careful illustration of the distinction between understanding financial information and appreciating the consequences of financial decisions, particularly in the context of acquired brain injury and financial vulnerability.

While the moving party, Jermall Harvey, had made genuine efforts to demonstrate his capacity, the Court ultimately concluded that the guardianship should remain in place, at least for now. Importantly, however, the Court structured a path forward that balanced protection with dignity, rather than treating incapacity as a fixed or permanent state.

Background

Jermall Harvey is a 35-year-old man who suffered a serious assault resulting in permanent brain injury. As part of the settlement of his civil damages claim, his mother, Leigh-Ann Harvey, was appointed his guardian of property in 2022 following findings that he lacked capacity to manage his finances.[2] The settlement funds totalled over $477,000.[3]

The guardianship was not without conflict. During the period when his mother acted as guardian, Jermall repeatedly requested large sums of money, fell victim to financial scams (including cryptocurrency schemes), and reacted negatively when funds were withheld.[4] Ultimately, Leigh-Ann sought to be removed as guardian due to the strain this placed on their relationship. In August 2024, Concentra Trust was appointed as replacement guardian of property.[5]

Jermall subsequently brought a motion to terminate the guardianship, asserting that his cognitive functioning had improved and that he was capable of managing his own finances. An earlier date of the motion was adjourned after the Court found the supporting capacity evidence deficient, particularly for lack of medical context and collateral verification.[6]

Issues

The central issue before the Court was whether Jermall was now capable of managing his property within the meaning of s. 6 of the SDA, such that the guardianship should be terminated.

Analysis

The Court was presented with two key pieces of updated evidence[7]:

• a psychological report addressing cognitive functioning; and
• a new capacity assessment concluding that Jermall was capable of managing property.

On their face, both reports suggested improvement. Jermall demonstrated the ability to identify bank accounts, explain budgeting concepts, pay bills, and articulate strategies for addressing financial shortfalls.[8]

However, the Court emphasized that capacity to manage property is not established by surface-level financial literacy alone. One can “understand” what is in their bank account but may be unable to “appreciate” more complex aspects of their finances.

Drawing on Starson v. Swayze[9] and earlier capacity jurisprudence, the Court reiterated that under the definition of capacity for the purposes of s. 6 of the SDA, appreciation involves insight into how decisions will affect one’s life, including long-term consequences and quality of life.[10]

Several concerns undermined the weight of the new assessments[11]:

• Neither report meaningfully engaged with independent medical evidence regarding the ongoing effects of Jermall’s brain injury.
• The assessments relied heavily on Jermall’s self-reporting, which conflicted with documented history.
• Credible concerns raised by both his former guardian and Concentra Trust regarding impulsivity and vulnerability to scams were noted but not meaningfully incorporated into the assessors’ conclusions.
• There were unexplained inconsistencies regarding alleged debts, loans, and financial decision-making.

Critically, the Court accepted that Jermall could understand his financial situation but found that he currently lacked the ability to appreciate the consequences of complex financial decisions, particularly those involving large sums of money, risk, and long-term planning.[12]

Rather than ending the analysis with a simple refusal to terminate the guardianship, the Court rejected a purely paternalistic approach. It acknowledged Jermall’s efforts and created a structured plan in an effort to respect his dignity.[13] The Court provided Jermall with further opportunity to make his case to the court in 6 months.[14]

Jermall was to be given a lump sum of $15,000 to manage independently, required to account for its use, and directed to return to court with further medical evidence addressing his neurological prognosis. The judge hearing the return motion would then determine whether the guardianship should be terminated.

Final Thoughts

Harvey is a useful reminder that capacity is decision-specific, context-specific, and time-specific. Moreover, the ability to recite financial facts is not the same as the ability to manage financial risk.

Importantly, and this is perhaps my favourite part of the decision, the Court’s approach reflects a genuine effort to balance protection with autonomy, particularly where a person has made meaningful attempts to regain independence. Rather than treating incapacity as fixed or responding with a binary yes-or-no outcome, the Court created a structured opportunity for Jermall to demonstrate capacity in practice, while still maintaining safeguards in the interim.

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[1] 2026 ONSC 237 [Harvey].

[2] Ibid at para 6.

[3] Ibid at para 4.

[4] Ibid at para 7.

[5] Ibid at para 8.

[6] Ibid at para 10.

[7] Ibid at para 11.

[8] Ibid at paras 16-24.

[9] 2003 SCC 32.

[10] Harvey, supra note 1 at paras 41-43.

[11] Ibid at paras 44-49.

[12] Ibid at para 52.

[13] Ibid at para 53.

[14] Ibid at para 54.