AREAS OF PRACTICE
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A person who is unable to manage their finances or properly attend to their personal care becomes more vulnerable to exploitation and abuse by others. Where a person becomes incapable of managing their care or finances and does not have powers of attorney, the court may need to step in to appoint a guardian to act on his or her behalf. The procedure to appoint a guardian for property or personal care can be an expensive, lengthy and intrusive process, and underscores the importance of ensuring that properly-enacted powers of attorney are in place should the need ever arise. In light of our burgeoning aging population, and the fact that people are living longer than ever before, age-related capacity issues requiring a person to make decisions on another’s behalf are becoming increasingly prevalent.
Ontario’s Substitute Decisions Act, 1992 governs what may happen when a person is found to be incapable of making decisions about their property or personal care. Property decisions are those concerning real estate and financial assets, while personal care decisions pertain to medical treatment, accommodation, nutrition, safety, hygiene and clothing. The range of personal care decisions that can be made by a guardian is dependent on the extent of the person’s incapacity. The guardian is required to follow any advance instructions or wishes made by the person while capable, unless it is impossible to do so. A guardian of property can do anything with respect to the person’s property and finances that the incapable person could do while capable, except make a Will. Guardians (and attorneys) are accountable for their actions, and may be removed or replaced if found to be acting inappropriately.
Where no one else is able or willing to take on a guardianship role, the Public Guardian and Trustee may step in. Priority is always given, however, to spouses or to any other relatives who may be able to take on these responsibilities. A person may also make their own application to court to appoint a guardian or the Public Guardian and Trustee.
While the courts seek to protect the interests of vulnerable persons, they also recognize the restrictions guardianship places on an individual’s autonomy and independence. For this reason, the courts are careful to limit the powers of appointed guardians only to decisions that must be made. There are strict evidentiary requirements to be met and a court must first consider alternative courses of action that are less restrictive of a person's right to make their own decisions.
Guardians for property or of the person must exercise their powers diligently and in good faith. They must act according to any wishes or directions expressed by the incapable person while they were capable. Where the incapable person’s wishes or instructions are unknown, the guardian must follow the incapable person’s values and beliefs and make all decisions in his or her best interest.