In Ontario, an individual may be appointed a substitute decision-maker called a “guardian” if they become unable to manage their own affairs due to mental incapacity. Different types of guardianship are available, each of which carries its own responsibilities and consequences.
Guardianships can be highly emotional and complex legal matters. In this two-part series, we explore some of the most common questions about the concept of guardianship as it relates to mentally incapacitated adults in Ontario.
General Questions About Guardianship of Mentally Incapable Adults
What is Guardianship?
Guardianship is a court-ordered power for a person to make decisions about another person’s life, such as their health/medical care, property, or finances. It is a form of substitute decision-making commonly used to care for a person who has lost the ability to make their own decisions due to mental incapacity.
In Ontario, guardianship of mentally incapable individuals is governed by the Substitute Decisions Act.
What is Mental Incapacity?
Mental incapacity refers to a person’s inability to make their own decisions due to mental illness, age, or other disability. If a person cannot understand the information needed or the consequences of making a decision, they lack the mental capacity to make that decision.
What Types of Guardianship Are Available in Ontario?
In the context of mentally incapacitated adults, two types of guardianship are available in Ontario: guardianship of property and guardianship of the person.
Questions About Guardianship of Property
What is Guardianship of Property in Ontario?
Guardianship of property allows the guardian to make financial decisions on behalf of a mentally incapable adult. A guardian of property may be a person or a trust corporation.
What is a Guardian of Property Responsible For?
In Ontario, a guardian of property handles all of a mentally incapable person’s property, including their finances, bank accounts, real estate, and other assets. They handle the person’s banking, direct their income, administer their pension money, apply for any benefits they are entitled to, pay their bills, and buy goods and services as needed.
A guardian of property cannot make any decisions relating to the person’s estate planning (including Wills) or their health/personal care. In most situations, the guardian of property is also restricted from dealing with property that is bequeathed to someone in the mentally incapable person’s Will.
How is a Guardian of Property Appointed?
A guardian of property in Ontario is appointed by one of two bodies: the Office of the Public Guardian and Trustee or the Ontario Superior Court of Justice.
If the person who will be the subject of the guardianship has been found mentally incapable (usually through a medical or professional assessment), the potential guardian can apply to the Court to have a judge grant the guardianship by court order. The Court may impose certain conditions upon the guardianship, such as a requirement to pass accounts.
However, the person may already be under guardianship with the Office of the Public Guardian and Trustee (OPGT). If this is the case, the potential guardian must apply to the OPGT to replace the OPGT as guardian. The only people who may apply to the OPGT to replace it as guardian are the mentally incapable person’s spouse, partner, or relative.
What Happens if the Office of the Public Guardian & Trustee is Already Guardian?
If the Office of the Public Guardian and Trustee (OPGT) is already the guardian of property for the mentally incapable person, anyone who wants to take over guardianship must apply directly to the OPGT. Only the mentally incapable person’s spouse, relative, or partner can do so.
The person applying to replace the OPGT as guardian must complete a Management Plan that explains, in detail, how they intend to manage the mentally incapable person’s property. The OPGT then reviews the plan and decides if it is suitable. The OPGT may also impose conditions upon the guardianship.
What Duties Are Owed by Guardians of Property?
The Office of the Public Guardian and Trustee has created a guide explaining all duties owed by guardians of property. Some examples include:
- Keeping the mentally incapable person’s accounts and finances completely separate from the guardian’s own;
- Taking compensation for the guardian’s services only to the extent that it is legally permitted;
- Considering the personal comfort and well-being of the mentally incapable person in executing any financial transaction or decision for them;
- Managing the mentally incapable person’s property to accommodate their personal care preferences (for example, by paying for their chosen location of residence, if they can afford it). This doesn’t apply if accommodating their preferences would cause negative financial consequences that heavily outweigh the personal care considerations;
- Informing the mentally incapable person of the guardian’s powers and duties to the extent that they can understand;
- Encouraging the person to participate, to the best of their abilities, in decisions about their property;
- Consulting with the mentally incapable person’s family members, friends, and those providing their personal care;
- Acting in accordance with the property management plan; and
- Making reasonable efforts to retain any gifts set out in the mentally incapable person’s Will so they may be passed on to the beneficiary when the person dies.
Contact Derfel Estate Law in Toronto for Trusted Guardianship Advice
The professional estate and guardianship lawyers at Derfel Estate Law help clients protect the financial, health, and personal interests of their loved ones. We provide strategic and compassionate advice that protects all relevant parties throughout the process and eases clients’ concerns. We also offer estate probate and administration services and advocate for clients in estate litigation, including trustee and executor disputes, Will challenges, and passing of accounts. To schedule a confidential consultation, contact us online or call 416-847-3580.