We see a lot of guardianship disputes in the estate litigation world. Typically, a guardianship application arises when an individual lacks capacity to manage his or her property and/or personal care, and there is no power of attorney in place to make financial and/or personal care decisions on behalf of that incapable person. In such cases, it is a concerned family member who usually makes an application to have a guardian of property and/or a guardian of the person appointed by the court. In other cases, there may be a power of attorney for property or personal care in place, but its validity is being challenged or there is an allegation that the attorney for property or personal care has somehow breached his/her fiduciary duties to the grantor of the power of attorney. An applicant in this scenario may also seek an order for a court appointed guardian of property or of the person.
Before launching an application, however, it is imperative to know who must be served with the court materials. Failure to follow the rules surrounding service can cause undue delay, complications, and costs.
The governing legislation in these disputes is the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). The SDA is a stand alone and comprehensive legal regime enacted for the benefit of vulnerable and incapable persons. Given the unique and sensitive nature of a guardianship application, subsection 69(1) of the SDA requires that the notice of an application to appoint a guardian of property shall be served on the following persons: (1) the person alleged to be incapable of managing property; (2) the attorney under his or her continuing power of attorney, if known; (3) his or her guardian of the person, if known; (4) his or her attorney for personal care, if known; (5) the Public Guardian and Trustee (the “PGT”); and (6) the proposed guardian of property. Similarly, the notice of an application to appoint a guardian of the person shall be served on: (1) the person alleged to be incapable of personal care; (2) the attorney under his or her continuing power of attorney, if known; (3) his or her guardian of property, if known; (4) his or her attorney for personal care, if known; (5) the PGT; and (6) the proposed guardian of the person.
Further, it is necessary, in accordance with subsection 69(6) of the SDA, that the notice of application and accompanying documents are also served on all of the following persons, who are known: (1) the spouse or partner of the person who is alleged to be incapable of managing property, whose property is under guardianship, who is alleged to be incapable of personal care or who is under guardianship of the person, as the case may be; (2) the person’s children who are at least 18 years old, in the case of an application or motion under Part I (re. property), or at least 16 years old, in the case of an application or motion under Part II (re. the person); (3) the person’s parents; and (4) the person’s brothers and sisters who have attained the relevant age referred to in (2).
It is also important to be mindful of the requirements relating to the materials that have to be filed on a guardianship application. Section 70 of the SDA sets out rules of this issue, such as the filing of a management or care plan. Practically, given time and expense considerations, management or care plans are often filed following the commencement of the guardianship proceedings. However, if this is the case, it should be flagged in the applicant’s notice of application (i.e. the management or care plan will be filed within a specified amount of time).
As is evident based on the cursory review above, it is imperative to consult the SDA before taking steps to have a guardian of property or of the person appointed by the court.
