Case Study: Appointing a Guardian

Disclaimer: This article on guardianship law 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.

The media has recently paid significant attention to guardianship law (or conservatorships, as they are known in the United States). Britney Spears and her father Jamie Spears have been in the headlines for their ongoing conservatorship battle.

This has created some confusion about how the process is used, specifically here in Ontario.

This article will review the purpose of guardianship law. We will then outline a recent case highlighting the benefits of having a strong estate plan.

Why might you need to appoint a guardian?

The purpose of appointing a guardian is to protect individuals who are unable to take care of themselves or their property due to physical or mental incapacity. You must first convince the court that the person in question truly does not have the capacity to make those choices for themselves.

Having a well-thought-out estate plan in place can help to avoid this process. You can appoint someone you trust as a power of attorney to make financial and/or personal decisions on your behalf in the event that you cannot do so.

Let’s outline a recent scenario that illustrates why you should have powers of attorney in place.

Our client’s father (let’s call him John Doe) was aging and had diminishing cognitive abilities. He had a handwritten will and powers of attorney that he prepared, but did not execute.

By the time they came to us, John no longer had the capacity to execute a proper will or powers of attorney. He needed to have a guardian appointed to handle his affairs.

In order to do that, the family had to apply to the Ontario Court of Justice. This involved completing a capacity assessment. As we have previously noted, a medical professional cannot perform this assessment. Rather, a specially-trained capacity assessor recognized by the Capacity Assessment Office must assess the person’s capacity.

The Solution

In this case, the family was successful in appointing a guardian. However, the process took several months and was quite costly. In fact, it cost several times more than it would have cost to prepare and properly execute John’s will and powers of attorney.

A Better Way

If John had executed a power of attorney while he still had the capacity to do so, this entire situation could have played out differently. He could have selected the person to care for his needs instead of that choice being made for him.

John would have also saved his family a lot of time and money. Any time we need to apply to the courts, it involves a fair amount of effort, energy and cost. Caregiving can be incredibly stressful. We want to help your family have one less thing to worry about.

We know that no one wants to imagine a day when they cannot take care of their own affairs. However, you must prepare for the unexpected. If you have not done so already, we encourage you to put an estate plan in place.

Contact our office to learn more about how we can assist you