The Office of the Public Guardian and Trustee (‘PGT’) is under the umbrella of Ontario’s Ministry of the Attorney General. One of the mandates of the PGT is the protection of individuals who have been found to be mentally incapable of managing their property. In such instances, the PGT may become a person’s statutory guardian of property.
Why is it called a ‘statutory’ guardian of property?
The role is called a ‘statutory’ guardian as it is created pursuant to a written law or ‘statute’. In Ontario, that statute is the Substitute Decisions Act (‘SDA’). The statute sets out how substitute decisions makers are appointed, including how the PGT becomes the statutory guardian of property of an incapable person.
At risk of serious harm
If a person is mentally incapable and at risk of serious harm, the PGT will undertake to conduct an investigation if there are no alternative solutions available. The SDA requires the PGT to investigate if an incapable person is at risk of suffering ‘serious adverse effects’ of a personal or financial nature.
Capacity assessment
Where an incapable person is not at risk of serious harm, we look to s. 16(1) of the SDA. It allows anyone to request a capacity assessor to perform an assessment of an individual’s mental capacity to manage their property to determine if the PGT should become the person’s statutory guardian of property. The assessment must be performed in accordance with the Guidelines for Conducting Assessments of Capacity published by the Attorney General of Ontario.
A capacity assessor is someone who has been qualified by the province to perform capacity assessments pursuant to the SDA. Doctors, nurses, psychologists, and other health professionals are eligible to become capacity assessors. Capacity assessors may set their own hourly rates. The PGT maintains a roster of qualified capacity assessors.
The person requesting the assessment would need to complete a Form 4 – Request for Assessment of Capacity to manage property under subsection 16(1) and provide it to the assessor.
If the assessor finds the individual to be incapable of managing their property, the assessor issues a certificate of incapacity and would provide copies of the certificate to the PGT. Once the certificate of incapacity is received, the PGT becomes the individual’s statutory guardian of property. There is a process by which a friend or family member of the incapable person can make an application to the PGT to replace the PGT as statutory guardian of property.
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