What is the process for guardianship applications in Ontario?

Disclaimer: This article discusses the process for an application for guardianship. It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

One thing is true – we are all aging, which can bring many challenges. For example, perhaps our parents are getting older, and we are concerned with their ability to care for themselves. Or maybe you have an adult child who may not be able to care for themselves for one reason or another. 

If so, it may be time to talk about guardianship. 

You might see the word “guardian” and wonder, “Wait, I’m looking for information on adults, not children. Am I in the wrong place?” 

Rest assured, you are not. In this context, guardianship refers to adults who, due to illness, an accident or other reasons, cannot make decisions for themselves and require another person to step in and make those decisions.

If you find yourself in this scenario, you may have a lot of questions. In this article, we will answer:

• What is guardianship and who can be a guardian?
• How does the law define mental incapacity?
• What are the differences between a power of attorney and guardianship
• What is the difference between guardianship of property and guardianship of a person?
• How do you apply for guardianship?

We hope the answers to these questions give you peace of mind about the process, and we encourage you to book a call with our office to discuss your specific situation further. Our team can help you with compassion and care during this emotionally charged situation.

What is guardianship and who can be a guardian?

Simply put, guardianship means that someone steps in and takes on the decision-making responsibilities for an incapable adult. It is a means of protecting someone who would otherwise be vulnerable.

The Substitute Decisions Act, 1992 governs this process and you must work with the Office of the Public Guardian and Trustee (OPGT).

Anyone over the age of 18 can be a guardian, but you should have a close relationship with the incapable person and demonstrate why you are trustworthy and responsible.

How is mental incapacity defined?

Mental incapacity is a term used to describe someone who cannot make decisions for themselves due to illness or injury. A specific class of professionals called capacity assessors make this determination. You can read more about capacity assessments here.

What is the difference between a power of attorney and guardianship?

A power of attorney sets out someone’s wishes if they cannot make decisions related to their property or personal care. It is preferable to have a power of attorney because you choose who will decide on your behalf if you become incapacitated.

When someone does not have a power of attorney in place, if a power of attorney is invalid, or if the named person is unwilling or unable to take on that responsibility, then you need to discuss guardianship.

What is the difference between guardianship of property and guardianship of a person?

A guardian for property is responsible for managing anything that the incapable person owns. In contrast, a guardian of a person is accountable for decisions related to health care, nutrition, shelter, clothing, hygiene, and safety.

A guardian of property can open and close bank accounts, pay bills, apply for benefits and buy goods and services. However, they cannot make personal care decisions, make a will on the incapable person’s behalf or sell property that is specifically gifted in a will (although there are some exceptions to this).

A person may be capable of making some decisions and not others. A guardianship is limited to the types of decisions that an incapable person cannot make, as determined by the courts.

How do you apply for guardianship?

In some instances, a person may not currently have a guardian but need one. An application for guardianship would be made to the court to have a guardian appointed.

In other circumstances, the OPGT has been named the guardian, and you would need to apply to replace them. This is called statutory guardianship.

In both cases, you would need to complete an application for guardianship. That application includes an affidavit that provides evidence of:

• the person’s incapacity (including two capacity assessments);
• the need for a guardian;
• who the guardian should be; and
• the proposed guardian’s plans.

A Management Plan sets this all out for guardianships of property. A Guardianship Plan outlines personal care decisions.

Do I need a lawyer for an application for guardianship?

While you can technically apply for guardianship without an attorney, it would be unwise. The law and the courts are very stringent when it comes to appointing a guardian, as it removes a person’s autonomy in that area. Therefore, you must follow the application and process closely.

We strongly recommend that you speak to us about a guardianship application so that you can smoothly move through the process. This is especially important if your need for guardianship has become more urgent. For example, the bank may freeze an account due to incapacity, but ongoing expenses remain.

Plan Ahead

Guardianship applications usually come about because someone fails to prepare a power of attorney or has one that is invalid at law. We cannot stress enough the importance of ensuring that an estate lawyer documents your wishes and decisions.

At Beeksma Law, our team can help you plan well in advance to care for and protect you and your loved ones.