When it is believed that a person is mentally incapable of making decisions, it is sometimes necessary to seek the appointment of a legally authorized substitute decision maker to make these choices on their behalf.
Legally speaking, mental incapacity is assessed based on
specific tests which include an assessment of two key aspects:
- Whether a person is capable of understanding the
information relevant to the decision and;
- Whether a person understands the consequences of
making or not making a decision.
A Guardian of Property is responsible for managing all of
the assets that the incapable person owns – this includes real estate and bank
Applying to be a Guardian of Property
The most common way that people become a Guardian for Property is to apply through the Ontario Superior Court to be appointed by a judge in a court proceeding. If you feel that this could be the best route for you, we would recommend speaking with a lawyer. An experienced lawyer will be able to advise you how to proceed as well as prepare all of the necessary documents and file the Court application for you.
The less common way is if the Office of the Public Guardian and Trustee (OPGT) already serves as a guardian of property for the incapable person. If this is the case, you can apply to replace the OPGT but only if you are their spouse, partner, or relative.
Duties of a Guardian of Property
Some legal duties of a Guardian of Property may include but are not limited to:
- Managing the incapable person’s property in a way that maximizes their quality of life;
- Encouraging the participation of the incapable person in decisions about their property (as much as is possible and practical);
- Keeping good and complete financial accounts and
transactions for the incapable person that are separate from your own;
- Consulting with supportive family members and friends who are in regular contact with the incapable person and with people providing personal care;
It is important to note that a Guardian of Property cannot make personal care decisions for the incapable person. There is a separate appointment – Guardian of a Person – who is permitted to make personal care decisions.
However, the Health Care Consent Act authorizes certain relatives to consent to treatment decisions for an incapable person without applying to the court – so it may note be necessary to apply to become a Guardian of Person for your loved one. Speak with a lawyer to learn what the best option may be for you.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.