When a person loses capacity no one else can take over decision-making for them, not even their spouse.
There has to be a legal document appointing a substitute decision maker (except in health care). Often this is a power of attorney document. However, not all powers of attorney give all decision-making power away. When this happens or there is no power of attorney at all, and the person cannot take care of themselves or their property, a guardian can be appointed by the court.
A spouse, partner or another relative can apply to court to be a guardian. If the incapable person does not have any relative willing or able, anyone else can apply, such as a neighbor. The court will decide whether the person applying is appropriate based on certain criteria.
The only people who cannot be guardians of property are people who are paid to provide health care, residential, social, training or support services to the person. This is to guard against the possibility of exploitation. However, exceptions to this are the person’s spouse, partner, relative, or attorney for personal care or property.
The only people who cannot be guardians of property are people who are paid to provide health care, residential, social, training or support services to the person.
If a relative does not live in Ontario but is willing to be a guardian, they can also apply. Quite often, that person must pay money to court as insurance for the funds they will administer. The court will not appoint the Public Guardian and Trustee (“PGT”) unless there is absolutely no other option.
The court will not appoint a guardian if there is a less restrictive way for the incapable person to make his or her own decisions. Even when the court does appoint a guardian, the court is careful to limit the guardian’s responsibilities to only those decisions that absolutely must be made.
Statutory Guardians of Property
The term “statutory guardian” means that the state, in the form of the PGT, automatically becomes guardian of a person’s property. In other words, this is not done by a court application.
If someone suspects that a person is incapable of managing their property and there is no attorney for property and no family, anyone can arrange a capacity assessment to determine whether the PGT should become the guardian. A person may also have their own capacity assessed if they would like the PGT to become their guardian. If the assessor issues a certificate of incapacity, the assessor must promptly send a copy to the PGT. Upon receipt of this certificate, the PGT automatically becomes the person’s guardian of property.
However, if an attorney for property was in fact appointed before the person lost capacity, and has authority over all of the incapable person’s property, that attorney may end the statutory guardianship by applying to court.
Anyone else, including the incapable person’s spouse or partner, a relative, attorney for property without full authority over the property, or a trust corporation, may apply to court to replace the PGT as guardian. The person applying must provide a management plan to the PGT which the PGT must approve. The court may appoint one or several statutory guardians to act jointly, or to make independent decisions over separate parts of the property. The law dictates how or when a statutory guardianship may end.
When Does a Guardian Act?
Since guardians are appointed by the court, they act when the court order comes into effect. Usually this is immediate.
What are their Duties?
Guardians’ duties are in the court order. There are two types of guardianship:
- Guardian of Property
- Guardian of the Person
First, a guardian tells the incapable person that they are “under guardianship” and explains what decisions the guardian will be making for the person.
The guardian must involve the person in decision-making as much as possible. They must encourage ongoing relationships with the person’s supportive family, friends and caregivers and consult with them from time to time.
If someone suspects that a person is incapable of managing their property and there is no attorney for property and no family, anyone can arrange a capacity assessment to determine whether the PGT should become the guardian.
They must make decisions that maintain the person’s independence as much as possible. The guardian should always choose the less restrictive option whenever possible.
If different people are guardians for a person’s care and for their property they must work together. Personal care decisions usually outrank property decisions, except where doing so would seriously risk the person’s financial stability.
Both guardians of the person and guardians of property must keep accounts. The information they record is, of course, different. For instance, a personal guardian records information on how decisions on nutrition, health care, or other personal care issues are taken. This includes who was consulted, any medical reports, and the person’s wishes, similar to personal care attorneys. Guardians of property, on the other hand, keep very detailed accounts of their financial dealings on behalf of the incapable person. The law states what information must be recorded.
Both types of records must be kept confidential unless revealing them is necessary to make a decision or the court orders it. The incapable person, the Public Guardian and Trustee, the Children’s Lawyer, and the incapable person’s attorney or guardian of the person or property may ask to see the records and must be shown them when asked.
How do Guardians make Decisions?
Decisions must be made diligently and in good faith. A person’s wishes made when capable must be followed, if they apply to the circumstances. Guardians must try to find out if such wishes or instructions exist. Later wishes, made while the person was capable, prevail over earlier ones.
Only if there are no known wishes that apply to the situation, does the guardian make a decision based on the person’s best interests. Best interests means considering a person’s values and beliefs; current wishes (i.e. while incapable); how much the choice is likely to improve the persons’ condition; and whether the benefit outweighs the risk of harm compared to another choice.
There are some decisions that a guardian cannot make. Generally, these relate to use of force or monitoring, or treatments that are unnecessary or research-based. A guardian faced with these issues should consult a lawyer.
Additional Duties for Guardians of Property
The guardian informs anyone who has financial dealings with the incapable person that they have taken over managing the person’s property. The guardian should not put assets in joint names or into their own name. The property is still owned by the incapable person.
The person’s will must be found and the guardian should not sell or give away any property that is a gift in the will. Property can only be sold if it is strictly necessary for the incapable person’s benefit during their lifetime.
A guardian has the power to do anything the incapable person could do if capable except to make a will. Because of this wide power, they are considered fiduciaries. This means they must act diligently, honesty, with integrity and in good faith for the incapable person’s benefit. For further clarification, being a fiduciary means the person’s assets are held in trust and cannot be used for the guardian’s personal use unless authorized by law.
A guardian must provide a management plan to the Public Guardian and Trustee and must follow that plan. They can always change the plan through consultation with the PGT.
The standard that a guardian will be held to in making financial decisions depends on whether they are paid. If unpaid, they must make decisions with the same careful judgment they would use in making decisions for themselves. If paid, they must apply the same skill, care and diligence expected of a person who is in the business of managing property.
Guardians for property are liable for any losses if they act improperly. Only a court can relieve part or all of the liability if satisfied the actions were honest, diligent and reasonable.
A guardian must pay for, in order:
- the support, education or care of the incapable person;
- the support, education or care of the incapable person’s dependants; and
- expenses required to satisfy any of the person’s legal obligations.
The value of the property, the accustomed standard of living, and the nature of the other legal obligations are factors to consider.
In addition, the guardian may make gifts or loans to the incapable person’s friends or relatives, as well as charitable gifts. If the person made an annual charitable donation this may be continued if affordable. These optional expenditures are subject to certain criteria under the law, which exist to ensure that the person is well provided for and that their property is not misused or exploited.
Guardians may be entitled to be paid and it is best to consult with a lawyer about this. If a paid guardian hires professionals to help him or her manage the finances or property, the professional’s fees are not taken out of the person’s property but paid for personally by the guardian. In the final analysis, it is up to the guardian to decide whether to take compensation based on their duties and other factors.
A court may order a guardian to “pass their accounts” – that is, their records are reviewed by the court. Guardians should be prepared for this from the very beginning by keeping proper records. Any of the incapable person’s attorney or guardian of the person, dependant, the Public Guardian and Trustee, Children’s Lawyer, a creditor, or any other person with court permission, may apply to have the guardian pass their accounts.
Acting as a guardian is a very serious obligation. For guardians of property, it is a task that may expose them to personal liability. Anyone taking on this responsibility should consult with a lawyer regarding the finer points on their duties, including record-keeping, the decisions that need to be made, dealing with banks and other financial institutions, among other issues. Guardianship is a special trust. Guardians can ensure that an incapable loved one lives comfortably, with proper care and surrounded by those who love them.
PLEASE NOTE: The information provided in this article is for informational purposes only. It is general information and should not be taken to be a full and accurate discussion of the law on this topic, nor is it intended to be legal advice or to be relied upon as legal advice by the reader.
If you have questions on guardianship, you may contact the author:
Areta N. Lloyd
In Association With
Elder Law Group
About the author