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Guardians for Mentally Incapable Persons: When the Court Decides

Court Hearing and Judgment

A person who is concerned about an adult who appears to be mentally incapable and at serious risk may apply to the court to appoint a guardian for that person, or may contact the Ontario Public Guardian and Trustee to ask them to conduct an investigation and possibly ask the court to appoint a guardian.

The points for the court to consider are found ss. 55(2)(a), (b), and 57(3)(a), (b) and (c) of the Substitute Decisions Act. According to these subsections, to appoint a guardian of the person, the judge must include in his or her judgment an observation that the person is incapable in respect of some or all of the functions referred to in s. 45 and, consequently, needs decisions to be made on his or her behalf by a person authorized to do so (SDA, s. 58(1)). According to s. 58(3), the judgment should specify whether the guardianship is full or partial. A full guardian is appointed only if the person is incapable of all the functions in s. 45 (SDA, s. 59(1)). Otherwise, partial guardianship is given in the judgment regarding some, but not all, of the functions set out in s. 45 (SDA, ss. 60(1), (2)). It is open to the court to appoint joint guardians (SDA, s. 57(4)) simultaneously, or two or more persons directed to act as guardian for specific time periods, if it makes sense in the circumstances.

The appointment could also be subject to several other points of consideration. The appointment could be for a limited time (SDA, s. 58(2)(a)) and could be limited by certain conditions (SDA, s. 58(2)(b)). The guardian could also be given the authority with the assistance of a police officer to apprehend a person (SDA, s. 59(3)) refusing to abide by the court ruling. According to s. 59(4), the guardian could be empowered by the court to change existing arrangements in respect of the person’s custody or access rights to a child, or to give consent on the person’s behalf to the adoption of a child. As s. 66(15) requires the guardian to act in accordance with the guardianship plan, it is prudent to seek a provision in the judgment specifically directing the guardian to follow the plan.

Guardian: Summary Disposition Procedure

Sections 74 and 77 give the additional requirements when summary disposition is followed. Here, two assessors are to meet with the alleged incapable person. Each carry out an assessment of the person’s capacity during the six months before the Notice of Application is issued and provide statements in the prescribed form. It is essential for one of such statements to say that in the opinion of the assessor, the person needs decisions to be made on his or her behalf by a person who is authorized to do so. In the description of the measures in summary disposition, the differences between standard and summary procedure in the application for appointment of a guardian are pointed out. Considering that assessments are to be obtained from two sources, medical affidavits are not necessary.

The two persons assessing the individual are to be necessarily certified for the purpose. Unlike the standard procedure, a person not certified (non-assessor) is not permitted. It is essential that one of the statements recommend that the person needs decisions to be made on his or her behalf by a person authorized to do so under O. Reg. 460/05, s. 7, Form A.

Click here for more information about the Substitute Decisions Act.

Contact the lawyers at Levy Zavet PC (Levy Zavet) in Toronto, Ontario for more information about the legal rights of handicapped individuals and the rights and obligations of their caregivers.