There are two procedural avenues when seeking to be appointed or removed as guardian of the person or guardian of property for an allegedly incapable person: the standard procedure which requires a court hearing, and the summary disposition procedure, which is done in writing.
The summary disposition procedure is set out under section 77 of the Substitute Decisions Act, 1992 (“SDA”).
Why Summary Disposition
In a guardianship matter, proceeding by way of summary disposition makes sense for non-contentious matters. A non-contentious matter might be one where no party (including the alleged incapable person) objects to the order sought. If the order sought is the appointment of a person as guardian for property or personal care, there should be clear evidence of the alleged incapable person’s incapacity to manage either property or personal care.
Proceeding by way if summary disposition is often faster and cheaper than the standard procedure, which requires a court hearing. An application by way of summary disposition can also be brought in any jurisdiction.[1] However, for these very same reasons, the Court will scrutinize any guardianship application brought by way of summary disposition heavily. Compliance with the SDA essential. In the case of Munir Nuri Saed v. Office of the Public Guardian and Trustee, the Superior Court of Justice refused to grant the guardianship orders sought even though the evidence was that the incapable person was “largely non-responsive, non-verbal and non-mobile following a catastrophic automobile accident”[2]
Required Documents in an Application to Appoint a Guardian
For a standard application to appoint a guardian of property or guardian of the person, documents that must be included in the application are:
- The proposed guardian’s consent;
- A management plan or guardianship plan; and
- A statement signed by the applicant indicating the alleged incapable person has been informed about the nature of the application and their right to oppose the application, or an explanation for why this was not possible.
Sections 72 and 74 of the SDA list additional documents required to appoint a guardian of property and guardian of the person by way of summary disposition, respectively.
- A statement made by a capacity assessor; and
- A statement by a person who knows the alleged incapable person and has been in contact with the alleged incapably person within the past year.
Both statements must indicate that the maker is of the opinion that the person in incapable or managing their property or making personal care decisions, and set out why they think that is the case. The statements must also indicate that the maker does not expect and direct or indirect benefit as a result of the appointment of a guardian of property or personal care.
[1] Kerley v. Gorrill et al, 2010 ONSC 2456, at para 5.
[2] Munir Nuri Saed v Office of the Public Guardian and Trustee, 2017 ONSC 70, at para 3.
