If your family member is no longer capable of making financial or personal care decisions, you may need court-appointed authority to be their guardian of property or personal care.
Seniors with dementia and adults with serious mental illness or who suffer head injuries are often left without a power of attorney (POA) to manage their financial affairs. They may be unable to make health or personal care decisions about hygiene or what medical treatments they receive. Being unable to understand events or their consequences, such as what will happen if they do or don't make decisions, can be a sign someone is mentally incapable.
Unless a family member or someone else steps up, a health assessor who decides your loved one is mentally incapable may appoint the Ontario Public Guardian and Trustee (OPGT) as their statutory guardian. You can take responsibility for assisting them by applying to be their guardian in place of the OPGT.
What is Adult Guardianship?
Do you need guardianship if you have power of attorney (POA)? No, because a POA is created while an adult is capable of making decisions, but wants assistance managing day-to-day affairs like paying bills or is planning ahead for a day when they could be incapacitated. POA appointments are based on choice. Guardians are court appointed when someone who is mentally incapable doesn't have a POA to represent their interests and can't express their personal preferences.
Adult guardians for personal care are substitute decision makers on health care, housing, safety, nutrition, hygiene and even clothing for the person they represent. Unless it is impossible, they must respect any advance directives or wishes the person expressed when they were capable, such as not being resuscitated in case of life-threatening illness or injury.
Guardians for property manage assets, pensions, investments, real estate and personal property such as vehicles or furniture. They are responsible for anything that affects the person's finances, except making a personal Will. (If you're worried if guardianship overrides a Will, rest assured a Will cannot be changed without consent from the person who made it.)
Ontario judges may appoint several guardianship attorneys to make decisions or consent to separate guardians for personal care and property. Appointments are effective as long as the person is mentally incapable, as decided by a medical professional or independent capacity assessor with special mental health training.
Who Can Be a Guardian?
Any adult over 18 with the person's interests at heart can make a guardianship application. Although trust companies can be appointed, usually a guardian is a loved one or friend who is trustworthy, has a close relationship with them and can manage finances responsibly. Courts or the OPGT hear from spouses, relatives or friends and the person can speak on their own behalf or have a lawyer do so. If you are unsure you are doing the right thing, you can ask for someone to be assessed, provided they don't have a POA and don't object. If you decide after the fact that you prefer not to be guardian, you can resign.
Your Legal Obligations as Guardian
As guardian, you are expected to act in the person's best interests and give them the best quality of life possible. It's your legal obligation to:
- separate your own and the person's finances to prevent intermingling assets
- keep accurate records of decisions
- pay legitimate bills, debts and legal obligations they can afford
- manage assets prudently to provide a good return without excessive risk
- collect income and benefits, such as pensions and GST refunds
- file and pay taxes
- and involve the incapable person in decisions as much as possible or consult with family, friends and caregivers about their finances or care.
The OPGT may investigate if you mismanage the person's finances or personal care.They may also request a criminal record check.
You are entitled to 0.6% of the average annual value of the person’s assets as compensation for your time and effort, plus 3% of money received and 3% of money paid out on their behalf.
Making Guardianship Appointments
Only an Ontario court or the OPGT can approve an application or change an appointment. If there is no one capable of managing the person's care or finances fairly, honestly and without a conflict of interest, the court may appoint the OPGT. Or you can request that the OPGT be guardian. Alternatively, if the OPGT is already guardian, you can ask the OPGT to make you a statutory guardian instead. The OPGT has authority under Ontario statutes to make appointments without going to court.
Preparing Guardian Applications
Applying to be guardian of property requires you to file a management plan showing how you will handle the person’s income, assets, expenses and debts. The plan is required along with a form 1 application to replace the OPGT as guardian.
You pay just $382 plus tax to the OPGT to file an application for statutory guardianship. Court applications are more costly and are based on the time and work involved. If your application is successful, you can use the person's assets to pay your costs.