If an adult becomes unable to make decisions or manage other basic life affairs, such as finances, they may be deemed mentally incapable. In that situation, a family member may be appointed as a guardian for that individual.
Table of Contents
- What Is Guardianship in Ontario?
- Types of Guardianship for the Mentally Incapable
- What Are the Responsibilities and Powers of a Guardian?
- What Is the Legal Criteria for Determining Mental Incapacity?
- What Is the Legal Process for Obtaining Guardianship?
- Are There Other Options or Alternatives to Seeking Guardianship?
- Is It Possible to Challenge or Terminate a Guardianship?
- What Is the Role of the Public Guardian and Trustee?
- Do You Need Legal Help to Discuss or Seek Guardianship?
At Greg Monforton and Partners, we understand that recognising the need to seek guardianship for a loved one is a difficult and emotional decision. In this article, we discuss more about guardianship of mentally incapable adults in Ontario and what that entails.
Do you need legal help to discuss the process of applying for guardianship for a mentally incapable family member? Contact our trusted law firm to speak with one of our compassionate and experienced estate litigation lawyers in Windsor. We will be happy to assist you and answer any questions you may have.
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What Is Guardianship in Ontario?
In Ontario, guardianship is a legal appointment designed to protect and support individuals who have become unable to manage their affairs or make critical decisions for themselves. This situation typically applies to adults who have been deemed mentally incapable for various reasons including, but not limited to:
- A mental condition, such as Alzheimer’s or the onset of another type of dementia
- Severe mental or developmental disabilities
- Traumatic brain injury
- Stroke resulting in substantial cognitive difficulties
- Severe substance abuse leading to mental or cognitive impairment
- Certain neurological conditions
- Coma or persistent vegetative state
Guardianship grants legal authority to a designated person or entity to make crucial decisions on behalf of the incapable individual. It is a significant responsibility that courts do not grant lightly, especially considering how this legal appointment impacts the rights and freedoms of the person under guardianship.
It is important to clarify that guardianship is not a one-size-fits-all solution. The extent of guardianship varies based on the specific needs and capabilities of the individual in question.
Types of Guardianship for the Mentally Incapable
Ontario recognises two primary forms of guardianship: property guardianship and personal care guardianship. Legally, the court could appoint a different person for each type of guardianship or one person as the guardian of both property and personal care. This appointment is decided based on the unique factors of the case.
What Are the Responsibilities and Powers of a Guardian?
Guardians of a mentally incapable adult bear significant responsibilities and must always act in the best interest of the person under their care.
Property guardians handle financial matters, such as:
- Paying bills
- Managing investments
- Filing tax returns
- Making decisions about property
The appointed guardian must keep detailed records of all financial transactions. In some cases, they may be required to provide regular reports to the court.
Personal care guardians decide on healthcare, housing and daily living issues. This means a guardian might make decisions, such as:
- Medical treatments the individual might need
- Selecting the appropriate living arrangements
- Ensuring the individual’s day-to-day needs are properly met
This role requires someone who has a deep understanding of the individual’s preferences and values.
Both types of guardians must strive to encourage the person to participate, to the best of their ability, in any decisions affecting them. Guardians should also consider the person’s prior capable wishes, known values and beliefs when making decisions.
Most importantly, it is vital that anyone considering guardianship understand that their role is not about controlling the mentally incapable individual. It is rather about supporting them and making decisions that are in their best interest since they are unable to do so for themselves.
What Is the Legal Criteria for Determining Mental Incapacity?
Ontario courts employ specific assessments to establish mental incapacity. These evaluations are not taken lightly and involve a thorough examination of the individual’s cognitive abilities.
The criteria focus on two main aspects:
- Can the person understand the important facts needed make a decision?
- Is the individual able to reasonably comprehend foreseeable consequences of a decision or lack of decision?
What many people may not realise is that incapacity is often not an all-or-nothing situation. A person might be capable of making certain decisions but not others. For instance, someone might be capable of deciding where they want to live but incapable of managing complex financial matters.
An individual may require separate evaluation to determine their capability to manage different aspects of life. The threshold for incapacity in property decisions might differ from that for personal care decisions. This nuanced approach ensures that the individual retains as much autonomy as possible while still receiving necessary support.
What Is the Legal Process for Obtaining Guardianship?
Securing guardianship in Ontario involves several crucial steps. There is no quick or simple process.
Obtaining an Assessment
To begin with, you must demonstrate the individual’s incapacity. This step typically involves having a qualified assessor do a capacity assessment. This assessment provides evidence to the court about the person’s ability to make decisions.
Next, you will need to prove your suitability as a guardian. To establish your suitability, you must:
- Establish that you understand the responsibilities involved
- Prove you are capable of fulfilling the role and responsibilities
- Provide a management plan outlining how you intend to handle the person’s affairs
Submit a Court Application
As part of the process, you will need to submit a court application. This application must include the capacity assessment, your proposed management plan and other relevant documentation. The court will review all of this information to determine whether guardianship is necessary. They will also use this documentation to determine whether you are the right person for the role.
After reviewing the details of the application, the court will also consider whether less restrictive alternatives are available. Guardianship is typically seen as a last resort when other options have been exhausted.
Are There Other Options or Alternatives to Seeking Guardianship?
Guardianship is not the only option available for supporting individuals who struggle with decision-making. There are other options that give the incapacitated individual more autonomy. These alternatives should be considered first.
Power of Attorney
It is a good idea to consider preparing a power of attorney prior to the onset of a known mental incapacity, such as dementia. Preparing one in the event of a possible injury or unexpected medical condition that could incapacitate an individual can also be incredibly useful.
Preparing these legal documents in advance gives individuals the opportunity to appoint a trusted individual to make decisions on their behalf if they become incapable in the future.
Supported Decision-Making
Supported decision-making is another alternative that allows the individual to maintain some control over their affairs. This approach involves providing the person with support to make their own decisions, rather than having someone else make decisions for them.
In some cases, additional options might include informal family arrangements, trusts or community support services. The appropriate alternative largely depends on the individual’s specific situation and needs.
Is It Possible to Challenge or Terminate a Guardianship?
Guardianship can be challenged in court if the incapacitated person’s condition improves or if the guardian’s conduct is deemed questionable. An individual who regains capacity can obtain new assessments and apply to the court to terminate guardianship. Challenges may also result if a guardian mismanages finances, makes poor decisions or neglects their duties.
Courts retain the power to modify guardianship arrangements, remove unsuitable guardians, appoint new ones or fully end a guardianship that is no longer needed.
What Is the Role of the Public Guardian and Trustee?
The Public Guardian and Trustee (PGT) is a key governmental body in Ontario’s guardianship system. It can take on guardianship when no one else is suitable, ensuring vulnerable individuals receive necessary support. The PGT also monitors private guardians, investigates abuse claims, and can step in if guardians neglect their duties. Additionally, it offers guidance and resources to help guardians understand their responsibilities.
Do You Need Legal Help to Discuss or Seek Guardianship?
The primary goal of seeking guardianship is to seek the best possible care and support for individuals who are unable to make decisions for themselves.
At Greg Monforton and Partners, we are prepared to help you navigate the legal process of seeking guardianship compassionately, We are also prepared to help you understand your rights and responsibilities in taking on this role.
Call to discuss your situation with a licensed lawyer at our firm. Your initial consultation is completely free.
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