Guardianship

A guardian is someone who is appointed by the court to manage the property (“guardian of property”) or health care (“guardian of the person”) of an incapable person.

Ontario’s Substitute Decisions Act defines “incapable person” to mean anyone who is not able to understand information that is relevant to making a decision concerning his or her own health care or the management of his or her property. The legislation also sets out the procedure for applying to become a guardian of property/person.

A guardian may be appointed by a court to manage the financial and/or personal affairs of someone who does not have the ability to do so.  In order to be appointed by a court, the proposed guardian needs to apply to the court by providing sworn evidence (by way of affidavit) and also a proposed management/guardianship plan to demonstrate how he or she intends to manage the incapable person’s property and/or personal care.

A guardian of property is someone who is appointed either by the court or by the Office of the Public Guardian and Trustee to manage the financial affairs of a person who is mentally incapable of doing so for himself or herself.

When the Office of the Public Guardian and Trustee is acting as a guardian for an incapable person, it can appoint certain people to act in its place such as a relative, spouse or partner of the incapable. This is a “statutory” appointment. If the Office of the Public Guardian and Trustee is not acting as guardian, or you do not fall into the category of people that the Office of the Public Guardian and Trustee can appoint, then you can apply to the Ontario Superior Court of Justice to become a guardian. Part of your application will include a management plan which tells the court how you plan to manage the incapable person’s finances.

If a person requires someone to make decisions on their behalf regarding personal care, shelter, safety, hygiene, clothing, nutrition and/or health care, and that person does not have a power of attorney for personal care, then you may apply to the court to be appointed as guardian. Part of your application will include a guardianship plan in which you will explain how you propose to manage the incapable person’s personal care.

The Office of the Public Guardian and Trustee delivers a range of services that safeguard the legal, personal and financial interests of certain individuals and estates.  The Office of the Public Guardian and Trustee reviews guardianship applications and must be provided with a copy of all guardianship applications before they are heard by the court.

You should contact the Office of the Public Guardian and Trustee if you believe someone is mentally incapable and at serious risk of harm. If the Office of the Public Guardian and Trustee determines that this may be the case, it may decide to conduct an investigation.

The Office of the Public Guardian and Trustee will only act as a person’s guardian when there is no one else who can act on the person’s behalf when a guardian is needed.

In Ontario, a parent does not automatically have authority to manage his or her child’s assets.  The parent needs to receive the authority to do so either by statute, court order, or under a will.  For instance, the parent may apply to the court become guardian of his or her child’s property, which would allow him or her to manage the monies provided as a gift under the will.

A guardian of property is responsible for the care and management of the minor’s property and needs to keep careful records (called “accounts”) of all dealings with the child’s money.  He or she needs to make proper investments with the child’s money and comply with the Trustee Act and any management plan that was approved by the court.

If the amount payable to the child does not exceed $10,000 and is not paid pursuant to a court judgment or order, it can be paid directly to the parent with whom the child resides, a person who has lawful custody of the child, or to the child in the event that the child has a legal obligation to support another person. Please note however that the person receiving the money or property on behalf of the child has the same responsibility as a guardian of property for its care and management.

Where the parent or person with legal custody of the child does not have the legal authority to receive the child’s assets on the child’s behalf, the monies must be paid into court to the Accountant of the Superior Court of Justice.

Paying funds “into court” means that the funds are deposited with the Accountant of the Superior Court of Justice, a government official. The money will earn interest calculated daily and compounded monthly (subject to change and market fluctuations).  A portion of the funds may be invested in a Diversified Trust Fund, which consists of a diversified portfolio of domestic and foreign equities and fixed income securities designed to generate capital gains and a stable income yield. 

The child may obtain his/her funds and interest on reaching the age of 18 years or at a later age depending on what the court order or will which governs the payment of money into court says.

There is an informal procedure for parents or caregivers to request payments out of court for the direct benefit of the child when the parent/caregiver cannot afford the expense. The parent or caregiver may write directly to a provincial government office, the Office of the Children’s Lawyer, to explain why the payment is required. The Children’s Lawyer, or her agent, will submit the request to a judge.  If a judge agrees with the request, the money requested will be paid out of court to the parent/caregiver.

The Children’s Lawyer represents minor and unborn beneficiaries in a wide variety of estate and trust cases, including will challenges and interpretations, applications for removal of executors and trustees, claims for dependants’ support, applications to vary a trust, division of property claims under the Family Law Act and the sale or mortgage of minors’ property. The Children’s Lawyer also must be provided with estate and trust accounts that are presented to the court for approval where a minor or unborn person has a vested or future interest in the estate.