Guardianship Application

A Guardianship Application is used to appoint a guardian to manage personal care or property of an individual who is incapable of making decisions on their own due to mental or physical incapacity. The guardian is responsible for ensuring the well-being of the person (for personal care) or managing their finances and property (for property guardianship). Here is a detailed breakdown of the guardianship application process from beginning to end.

Types of Guardianship in Ontario

There are two types of guardianship in Ontario:

• Guardianship of Property: A guardian is appointed to manage the financial transactions, including paying bills, managing bank accounts or selling assets, of an individual who is incapable of doing so.
• Guardianship of Personal Care: A guardian is appointed to make personal decisions related to health care, shelter, nutrition and safety for an individual who is incapable of managing their personal care.

When is Guardianship Necessary?

Guardianship may be necessary when:

• An individual becomes mentally incapable and does not have a valid Power of Attorney for Property or Power of Attorney for Personal Care in place.
• Family members or caregivers need formal authority to manage the incapable person’s financial or personal care matters.

The process is overseen by the Ontario Superior Court of Justice and requires evidence that the person is mentally incapable of managing their affairs.

The Process for Guardianship Application

1. Assess Mental Incapacity

The first step is to confirm that the individual is mentally incapable. This is usually done through a capacity assessment by a qualified medical professional, such as a doctor or psychologist, who evaluates the individual’s ability to make decisions about their property or personal care.

• For property matters, the capacity assessor evaluates whether the person understands information related to their financial decisions.
• For personal care matters, the assessment considers whether the person can understand personal care decisions, such as medical treatment or living arrangements.

The capacity assessment report is critical in supporting the guardianship application.

2. Who can apply to be a Guardian?

Not everyone can apply to be a guardian. The court typically prefers family members, but others with a close relationship to the incapable person can also apply. In the case of property guardianship, the applicant must be willing and able to manage the person’s finances responsibly.

You can apply to the Ontario Superior Court of Justice to be appointed a guardian by a judge in a court proceeding. Consulting a lawyer before taking any step in this process is highly recommended.

3. What are the duties of a Guardian of Property?

Some of the duties of a guardian of property include:

• managing the incapable person’s property in a way that maximizes their quality of life
• encouraging the incapable person to participate, as much as they can, in decisions about their property
• consulting with the incapable person’s family and friends
• encouraging contact between the incapable person and their family and friends