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Appointing a legal guardian for the mentally incapable.

To become a court appointed guardian of property; there are two procedures: the “standard procedure” and the “summary disposition procedure”. The second procedure needs two assessments (at least one by an official “assessor”), which happens to be the main difference between the two procedures. In a summary disposition procedure, a judgment appointing a guardian of property can be obtained from a judge without a court hearing. To appoint a person as guardian of another’s property a proceeding  is to be commenced by Notice of Application, according to the Substitute Decisions Act (SDA). Considering that section 25(1) of the SDA requires: “[that a judgment] appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so”, hence the Notice of Application should seek a judgment that the person is incapable of managing property and that, as a result, it is necessary to appoint a guardian of property.

Affidavit

Evidence on motions and applications is governed under Rule 39 of the Rules of Civil Procedure (Rules). Although evidence can be given by affidavit, such evidence is not to be on “information and belief” except with respect to facts that are not contentious. There is nothing in the SDA requiring an affidavit by the applicant, as a general rule, but the Court cannot act without evidence being brought before it.  In view of this, unless the applicant intends to call viva voce evidence (live testimony), an affidavit by the applicant will be required.

Management plans

It is necessary that the management plans are reviewed in detail by the court and are, therefore, key elements in an applicant’s submissions. When reviewing the management plans (separate plans are to be filed for a guardianship of property and guardianship of the person), the court will consider only the best interests of the incapable person.

Medical affidavits

It would be seen that there is no provision in the SDA indicating that medical affidavits are necessary, nor was there any under the predecessor statute, the Mental Incompetency Act. Anyway, the general practice of the courts, which admits exceptions in certain circumstances, is to require affidavits from at least two physicians, a procedure in accordance with the Re: Avery case. So, it is expected that before the court is delivering a judgment finding a person incapable of managing property and giving someone else the authority to manage property for him, the judge is going to require very clear medical evidence of these facts. It is particularly important when utilizing the standard procedure for the application, as opposed to the summary procedure.

Hearing and judgment

There has to be a finding in the judgment that not only the person is incapable, but also as a consequence, it is necessary for decisions to be made on that person’s behalf by a person who is authorized to do so. It is necessary for the judgment to include a specific statement of the appointment of the guardian of property. The court could appoint joint guardians or two persons, each to be the guardian for a specified part of the property. If any security is to be posted, the judgment would detail that along with the extent of the security. It is likely that the court would make the appointment for a limited period of time and impose conditions upon the appointment. Nothing in the provision specifically requires the court to incorporate a management plan, or a form of management plan, into the judgment, but the guardian of the property has to act in accordance with a sort of plan. So, it is preferable to seek a specific reference to the management plan in the judgment, or attach the plan as a Schedule to the judgment.

Summary disposition

In a summary disposition the applicant is allowed to seek a judgment from the court appointing a guardian of property without a hearing, that is, “over the counter”. For this, the applicant has to follow all the steps in the standard procedure except the court hearing. As a hearing is not conducted, the applicant gets statements from at least two medical assessors, or one assessor and another person (who saw the alleged incapable person within one year prior to issuance of the Notice of Application), who are to meet the same incapable person and provide statements in a prescribed form. One of those statements should include the opinion and a strong recommendation that it is necessary to appoint a guardian for property to make decisions on the allegedly incapable person’s behalf. In view of the extra steps required in the summary procedure, this method is rarely used. Moreover, judges are very reluctant to declare a person incapable without a hearing and would like to ask the lawyer at least a few questions, even in an uncontested guardianship application. There are jurisdictions, regardless of the statute, where the registrar will not even accept an over-the-counter application; but will instead automatically set the matter down for a hearing.

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