November 14, 2022

Attorneys for property and attorneys for personal care are, for the most part, generally understood in our society. That may be because the attorney for property or attorney for personal care is the role that one can grant (the “grantor”) to another through the execution of powers of attorney. The discussion about powers of attorney is therefore, one that is typical when also discussing last wills and testaments. People who have sought the assistance and advice of a lawyer in preparing their will have also, likely, received advice powers of attorney.

A guardian is different because a grantor does not appoint a guardian through a power of attorney. A guardian is statutorily appointed or court appointed. The Substitute Decisions Act, 1992, S.O. 1992, c. 30, (the “SDA”) mandates when a guardian will be appointed by statute or the court. A statutory appointment will occur “if a certificate is issued under the Mental Health Act certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property.” (s. 15 of the SDA). (The issuance of such a certificate sets off a procedure which is beyond the scope of this blog).

The SDA provides that the court may order the appointment of a guardian where someone has brought an application seeking the appointment of a guardian (s. 22(1) of the SDA for guardian of property and s. 55(1) of the SDA for guardian of the person). However, the appointment of a guardian will only be made where the person for whom the application is brought is incapable and, as a result, needs decisions to be made on his or behalf. This requirement is an important one: the person must be found to be incapable by the court in order for a guardian to be appointed. And the court will not make a finding of incapacity lightly.

Perhaps not surprising then, immediately after the provisions of the SDA which allow for a guardianship application to be brought, there are provisions for when a court will not make the appointment. The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a)  does not require the court to find the person to be incapable of personal care; and

(b)  is less restrictive of the person’s decision-making rights than the appointment of a guardian.

(s. 22(3)(a) and (b) for guardian of property and s. 55(2)(a) and (b) for guardian of the person).

In theory this often means that the court will decline to appoint a guardian where there are powers of attorney in place (because the attorney appointed by the grantor can act). In practice the appointment of a guardian is sometimes sought where there issues with the powers of attorney (for example, whether they are valid or not) or there are serious concerns about the attorney. In such cases, the applicant will need to address why the court should overlook the person chosen by the grantor. In other words, there is no alternative course of action that does not require a finding of incapable and is less restrictive of the decision-making rights of the alleged incapable person.