Disposition by the Court
Under s. 77(3), there are three possible dispositions of the matter by the judge:
1) A verdict without a hearing;
2) A direction to the parties to provide other evidence or to attend a hearing; or
3) An order that the application or any issue proceed to trial along with directions therefor.
It is essential that at least one of the s. 72 statements contain a paragraph stating the opinion that it is necessary that decisions are made by an authorized person on behalf of the incapable person. The prescribed statement is given in the form in such a manner that the maker of the statement can either include it or cross it out. If a non-assessor expresses the view that a person must be appointed to make decisions for the incapable person, but the assessor does not share the same opinion, the court would perhaps refuse to grant the order.
Guardian of the Person in Standard Procedure
There are two procedures to apply for the appointment of a guardian for an incapable individual, the “standard procedure” and the “summary disposition procedure.” The summary disposition procedure requires all that is needed in the “standard” route, plus two assessments by assessors from the Capacity Assessment Office. A step-by-step outline of the standard procedure is given hereunder:
Initiating documents are the same as in the application for guardianship of property: a Notice of Application (SDA, ss. 55, 69(3)), affidavit of the applicant, and medical affidavits. Medical affidavits are not statutory requirement, but courts commonly will require them anyway. An important difference is that the proposed guardian’s consent should be included in the Application Record pursuant to s. 70(2). The applicant, in the Notice of Application, should seek an authorization that the person is incapable in respect of some or all of the personal care functions set out in s. 45 of the SDA (and this has to correspond to the scope of the order requested), as well as a judgment that the person needs decisions to be made on his or her behalf by a person who is authorized to do so and, therefore, a guardian of the person is appointed. The affidavit is to be prepared taking into account the categories of decision making listed in s. 45, like “full guardianship” and “partial guardianship”, discussed in ss. 59 and 60.
While preparing the affidavit of the applicant, special attention should be paid to s. 45 listing the categories of decision making relevant to persons incapable of taking personal care of themselves. A consent of the applicant is necessary (SDA, s. 70(2)(a)), along with a guardianship plan (SDA, s. 70(2)(b);O. Reg. 26/95, Form 8). If relatives of the person are supporting the application, then it would be helpful to include their letters of consent as exhibits. However, the consent of relatives is not a requirement under the SDA.
Applications for guardianship of the person, as opposed to applications for guardianship of the property, specifically include a provision for possible optional statements pursuant to s. 71(1). A person knowing the person alleged to be incapable, and who has been in personal contact with him or her during the twelve-month period before the Notice of Application was issued, can make a statement in the prescribed form. The form itself provides no guidance as to how to write the statement.
If such a statement is included, then details should be given (again, with the provisions of s. 45 in mind) to demonstrate that the person is incapable of his/her personal care. Although such an unverified statement is permissible, it is prudent to have the individual swear an affidavit stating those facts, and to include the affidavit as part of the application material. When these documents are ready, the Notice of Application is issued and an Application Record is prepared containing the foregoing documents.
Court Hearing and Judgment
The court considers the criteria in ss. 55(2)(a), (b), and 57(3)(a), (b) and (c). As noted above, to make a judgment appointing a guardian of the person, the judgment must include an observation that the person is incapable in respect of some or all of the functions required of a mentally sound person. If a non-assessor says that the person is incapable, but the assessor does not, the court might refuse to grant the order.
For more information about the appointment of guardians for the mentally incapable, as well as the legal rights and obligations of caregivers, contact the lawyers at Levy Zavet PC (Levy Zavet) in Toronto, Ontario.