There is a presumption at law that every adult is capable of making decisions. As a society, we take this presumption seriously in ensuring our rights are not unnecessarily taken from us and that we have autonomy concerning our own decisions.
The law governing guardianships in respect of adults under disability is set out in the Substitute Decisions Act, 1992, (the "SDA") and creates albeit somewhat imperfect, a device that attempts to protect a person who is vulnerable because of mental incapacity. The SDA provides for guardianship of the person, and of the property. Guardianship of the person can only be obtained through court application resulting in a court appointment, such application being put before the court under the SDA.
Guardianship of the property however, can be obtained in two ways: Firstly, one avenue is through a court application; and secondly, through a statutory guardianship as a result of a capacity assessment pursuant to the terms of the SDA.
A guardian whether for the person or property is a fiduciary who is required to act in the "best interests" of the incapable person and who will be expected to account for all dealings with the incompetent person’s personal and property affairs.
A guardian cannot be appointed for a person for personal care or property, unless the court makes a finding that the person is mentally incapable of managing property and/or personal care.
The procedure for bringing guardianship applications is set out in Part III of the SDA and in accordance with the Rules of Civil Procedure.
Necessarily, in preparing a guardianship application, thought must be given to the determination of a Litigation Guardian and the appropriate procedures for that appointment to be given due consideration.
Guardianship with respect to minors are governed by the Children’s law Reform Act, RSO 199l c.C.12.
WEL Paper: Getting to Guardianship
WEL STEP Paper: Guardianship – Dealing with Minors and Adults under Disability
Guardianship Checklist: Property
Guardianship Checklist: Personal Care
This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.Link to Practice Areas list