What Documents are Involved?
As in the standard procedure, the Notice of Application and the Affidavit of the Applicant (including exhibits) are to be prepared so as to proceed further. Whether or not the medical affidavits required in the standard procedure are also necessary in the summary procedure is not stated clearly. Considering that one statement is required from a qualified assessor as to the mental capability of the person, and that the appointment of a guardian is necessary, it seems then medical affidavits would be unnecessary. Anyway, the courts, in some instances, require at least one medical affidavit by a physician. Such written statements pursuant to s. 72 of the SDA, completed by the assessor or a person who is not an assessor, include a requirement that a declaration be made that the person is incapable of managing property. The basis of the declaration has to be set out in detail in that written statement.
Applicant Involves Either Two Assessors or One Assessor and One Non-assessor
The requirement for assessors is unique to the summary procedure process. The applicant or her counsel has to first decide whether there will be an assessment by two assessors, or an assessment by one assessor and one person who is not an assessor and who has seen the alleged incapable person within one year prior to issuance of the Notice of Application (SDA, s. 72(1)). This decision will obviously depend upon whether there is a non-assessor who is able to render an opinion that the person is incapable of managing property and provide details as are required by the form (O. Reg. 26/95, General, made under the Substitute Decisions Act, 1992, Form 8). Considering that assessors work on a fee-for-service basis, it follows that cost will be a major factor here. In addition, a letter is to be written, or a phone call is to be made, to the Capacity Assessment Office stating that an assessment by one or two assessors is required. Further, in the Section 1 definition of “assessor” is the stipulation that assessors are to be a member of one of the colleges specifically listed in O. Reg. 460/05, Capacity Assessment, made under the Substitute Decisions Act, 1992. Providing greater control over who the assessors are, this regulation prescribes a method for professional disciplinary action for any improper conduct or negligence on the part of the assessor. This is generally regarded as the consequence of a growing concern about the quality and reliability of the assessments that are conducted.
It is necessary for the assessor(s) to meet with the person to make the assessment (SDA, s. 72(1)). In the prescribed form of statement for the assessor, there is a statement that the assessment was made during the “six months before the Notice of Application to appoint a guardian of property was issued”. This aspect has to be kept in mind before issuing the Notice of Application. If the statement is provided by a non-assessor, then it has to include a paragraph to the effect that the person knows and has been in personal contact with the alleged mentally incapable person during the twelve month period before the Notice of Application was issued.
Issue Notice of Application
After the assessor(s) has carried out the assessment and is preparing the required statement, the Notice of Application can be issued by the applicant. It can also be done if a non-assessor provides a statement that he or she has met with the mentally incapable person within the last twelve months. A copy of the issued Notice of Application itself has to be sent to the assessor(s) so that he, she, or they are aware that the Notice of Application has been issued. Thereafter, the assessor(s) can complete the part of the statement informing that the assessment meeting took place within the six month period prior to the issuance of the Notice of Application.
Receipt of Statements from Assessor(s) and Non-assessor (if Applicable)
The applicant has to obtain from the assessor(s) (O. Reg. 460/05, s. 7, Form A) and non-assessor, as applicable (O. Reg. 26/95, Form8), their statements in the manner prescribed. It would be seen that the substantive portion of the prescribed statement provides an opinion regarding whether the person is incapable of managing property along with the details upon which that opinion is based. It is a responsibility of the assessor (and any non-assessor) to give an opinion in the statement as to whether or not it is necessary for decisions to be made on behalf of the alleged incapable person by a guardian for property. As well, details of the basis on which that opinion is formed is to be clearly spelt out.
Submission of Material to Judge by Registrar – Section 77
The next stages are: Preparation and service of the Application Record, and response thereto.
When a reasonable period for the delivery of the Notices of Appearance has passed, the applicant is to request the registrar to submit the documents directly to a judge along with a certificate in writing that:
1) No Notice of Appearance has been delivered;
2) The appropriate documents are submitted along with the application; and
3) Any one of the statements made under s. 72 shows that its maker is of the opinion that it is necessary for decisions to be made on the person’s behalf by a person who is authorized to do so under SDA, s. 77(2).
Under SDA, s. 77(1), the judge is likely to give a verdict without a hearing and without anyone appearing. It is quite difficult for an applicant to know when to certify that no Notice of Appearance has been filed because the Rules prescribe an appearance to be filed “forthwith” and the SDA does not stipulate a time limit.
The documents submitted to the registrar for further proceedings should include the Affidavit of Service relating to the Notice of Application. Although the provisions of the SDA do not require a draft judgment, it is prudent to include one so as to help the judge and to facilitate matters because the applicant is seeking judgment without a court attendance. If it is the intention of the applicant to seek costs payable out of the property of the mentally incapable person, this has to be mentioned in the draft judgment submitted.
Don’t do anything before fully understanding your rights and obligations. For more information about the appointment of guardians in Canada, contact the lawyers at Levy Zavet PC (Levy Zavet) in Toronto, Ontario today.