Guardianship Application; What You Need To Know and Why

Guardianship Application
Guardianship Application

Why Make a Guardianship Application?

A guardianship application becomes necessary when a relative or friend is not capable of managing their own affairs or making their own decisions. This can pertain to property or personal care.  This incapacity can arise for any number of reasons, most commonly a disability, a tragic accident, the result of an illness, or simply the loss of cognitive capacity without having a power of attorney for property or personal care in place. One may also be deemed an incapable person when there is a finding of incapacity by a capacity assessor; someone who can make a professional determination regarding an adult’s ability to make decisions.  An assessor is usually a physician or a psychologist.

Who Can Become A Guardian of Property or Personal Care?

Anyone over the age of 18 years may apply to become a guardian of property or personal care. Often it is a family member who applies to be appointed when a guardian must be appointed to manage one’s personal care or property. To become a Guardian of Property or a Guardian of Personal Care, or both, you must go through a process which is governed by the Ontario Substitute Decisions Act in either one of two ways;

  1. Court appointment, or
  2. Statutory Guardian appointment.

Let’s take a look at both processes.

What is the process to be appointed as Guardian of Property or Personal Care by the Court?

In Ontario, every person over the age of 16 years is presumed to be capable of managing and making decisions for themselves when it comes to personal care and over the age of 18 years for decisions regarding property.  If for some reason, you feel that a relative or loved one is physically or mentally incapable of managing or making their own decisions, or they were deemed incapable of making their own decisions, and you wish to help them, your first step is to file an application with the court, describing specifically why a guardian for property or personal care is necessary.

The necessary information to submit with your application includes the following:

  • Why the application is necessary;
  • Details about the incapable person, including but not limited to the particulars of their illness, and/or the diagnosis, medical assessment(s), and the applicant’s relationship with the incapable person;
  • Details of the proposed guardian;
  • Details of the management plan, which sets out how the incapable person’s property and/or personal care will be managed and safeguarded by the applicant;
  • Details of the guardianship and/or management plan, which sets out the individual’s circumstances, means, abilities, and what will be required to make sure that they are completely cared for.

This is only a brief overview. Each application process is different and the specific information required will depend on the circumstances of each case and the need to safeguard each incapable person. Everyone has different means and different needs, and these will all be carefully considered throughout any guardianship application. The application process may further vary based on whether or not the application is opposed or contested.

Statutory Guardianship

When The Office of the Public Guardian and Trustee (OPGT) appoints someone to act on the incapable person’s behalf, it is referred to as a Statutory Guardianship because a court order is not required for this appointment to be legal. The person appointed by the OPGT becomes the statutory guardian.

The Statutory Guardianship is used in limited circumstances, because the OPGT is limited in who it can appoint as a guardian. In most cases it is a relative, spouse or partner of the incapable person.

Trusteeship

In limited cases, instead of appointing a Guardian of Property or a Statutory Guardianship, a Trusteeship may be sufficient. A Trusteeship may be considered when there is only one source of income for the incapable person. Such sources of income may include ODSP, CPP or OAS.

Guardianship Application Ontario

What Is A Management Plan?

A Management Plan must be submitted with every application for guardianship of property. Simply put, the Management Plan outlines the applicant’s (i.e. the proposed Guardian’s) specific plan for how the incapable person’s property will be managed and safeguarded.

What Is A Guardianship Plan?

A Guardianship Plan must be submitted with every application for guardianship of personal care. Simply put, the Guardianship Plan outlines the applicant’s (i.e. the proposed Guardian’s) intentions for how to manage the incapable person’s medical needs, personal needs, and ensure that they are always cared for pursuant to their needs.

Examples: 

At Hummingbird Lawyers LLP, we have managed a wide variety of guardianship cases. Here are a just a few examples of the types of cases that we have assisted with:

  1. Our client’s mother had been living in a nursing home for the last few years. She had never signed any power of attorney documents, and did not have anyone named jointly on her bank accounts. Unfortunately, she had a stroke, and was left in a vegetative state. Because no consideration had been given to her financial arrangements, there was no one duly authorized to access her assets to help pay for the bills outstanding from the nursing home for her day-to-day care. Her daughter hired us to make a guardianship application. We assisted to put together a management plan, prepare the requisite court application, and appeared in Court before a Superior Court judge to have our client successfully named as her mother’s guardian.
  2. Our client’s son was involved in a catastrophic motor vehicle accident that left him in a diminished physical and mental capacity. At the time of the accident, he was a young adult and had never signed power of attorney documents. Because he was unable to manage his own finances, including the settlement funds received from the insurance settlement, his parents hired us to make a guardianship application. We assisted in putting together a management plan and the requisite application documents, including affidavits, accounting and medical assessment to name our client as their son’s guardian.
  3. Our client’s son was born with a degenerative disease that affected his physical and mental capacity. He never signed power of attorney documents, and when the son became the beneficiary of a substantial inheritance from his relative he was unable to manage his own finances, including the funds he was to receive pursuant to the Will. We were retained to make a guardianship application for property and personal care.
application for legal guardianship

Do I Need A Lawyer For A Guardianship Application?

At Hummingbird Lawyers LLP, our Wills and estates lawyers understand the responsibility that comes with an appointment as guardian of property and/or personal care. We are able to guide you through the guardianship process, represent you before the court and with the OPGT, and we assist you in the preparation of the management and/or guardianship plans of the incapable person.  We are here to answer your questions along the way.  Please contact us with your questions regarding a guardianship application and/or your duties as a guardian.

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    Ioulia is an Associate Lawyer with the Hummingbird Lawyers Wills & Estates practice group. Ioulia has a diverse legal background that includes estate, family and civil litigation and real estate practice.

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