The Ontario Public Guardian and Trustee (“PGT”) is a part of the Ontario Government. The PGT and Office of the Public Guardian and Trustee (“PGT Office”) operate under Ontario’s Ministry of the Attorney General. In this article, we will provide an overview of the PGT role and responsibilities.
Who or what is the Public Guardian and Trustee?
The PGT is responsible for the PGT Office, which employs almost 400 individuals across the province[iii] including administrative staff, investigators, and lawyers. Any of the PGT’s powers and duties can be delegated to an employee of the PGT Office.[iv] The PGT is also a corporation that can sue and be sued.[v]
What does the Public Guardian and Trustee Office do?
The PGT has a very wide and diverse mandate. The PGT’s powers and duties begin with the Public Guardian and Trustee Act. Section 5(1) of that act states that the PGT shall:
- discharge the duties imposed upon him or her by any Act of the Legislature or by the Lieutenant Governor in Council, and
- … also make inquiries from time to time as to property that has escheated, or become forfeited for any cause to the Crown, or in which the Crown in right of Ontario may be interested.[vi]
Many other pieces of Ontario legislation set out duties for the PGT. If there is no authority to do a thing in Ontario legislation, the PGT probably cannot do it.
The PGT provides some general information to the public for educational purposes. However, the PGT will not give legal advice about specific situations to individuals, charities or other entities.
The PGT Office mainly deals with issues relating to the interests of mentally incapable or unknown adults on behalf of the Province. In many ways, the PGT carries out the Government’s historic duty to protect the vulnerable, also known as parens patriae jurisdiction.
Parens Patriae Jurisdiction of the State
From the Latin “parent of the fatherland/nation”, parens patriae refers to the power traditionally exercised by the state or crown over individuals in need of protection. This has often included children and those without mental capacity.
Parens patriae jurisdiction was historically exercised by the court system in one form or another. A detailed review of the history of parens patriae jurisdiction was completed by the Supreme Court of Canada in E. (Mrs.) v. Eve, at paragraphs 31 to 39.[vii] Parens patriae jurisdiction is exercised in the “best interests” of the protected person.[viii]
The court’s jurisdiction has been supplanted by written law in many ways. The PGT Act among others are examples of legislation doing what the courts would have done previously. The Courts do continue to exercise the jurisdiction where there is a legislative gap among other potential circumstances.
Below, we describe various things that the PGT Office does under various pieces of legislation.
Investigations Relating to Adults at Risk Due to Mental Incapacity
The PGT Office conducts investigations when it receives information that an individual is at risk of serious adverse effects due to mental incapacity.[ix] Serious adverse effects could include loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for a dependant and serious illness or injury, or deprivation of liberty or personal security.[x] The PGT Office may ask the court for temporary guardianship to prevent the harm with the information obtained in an investigation.[xi]
The PGT is the property guardian of last resort for the property of adults who are mentally incapable of managing property. These are called statutory guardianships of property. Statutory guardianships can begin with incapacity finding by a Capacity Assessor under the section 16 of the Substitute Decisions Act, 1992[xii]. Capacity Assessments for this purpose cannot be conducted if the person refuses the assessment,[xiii] among other requirements. Statutory guardianships can also be initiated by a physician under Part III the Mental Health Act [xiv]. Mental Health Act assessments of property capacity are not voluntary in contrast and only available for patients in psychiatric facilities.[xv]
The PGT Office can accept applications to replace the PGT as a statutory guardian of property.[xvi] These applications can be made by the incapable person’s spouse or partner, a relative, a previously appointed attorney for property that does not have full powers, or a Trust Company in certain circumstances. This can be a path to property guardianship outside of an application to court.
The PGT can also be appointed as a guardian by a court but only with the PGT’s written consent.[xvii]
As statutory guardian or court-appointed guardian, the PGT Office would make all financial decisions for the incapable person but not personal care decisions such as deciding where the person will live.
Making Decisions About Personal Care
The PGT is the healthcare decision-maker of last resort in Ontario. The PGT can only make healthcare decisions for individuals who are incapable of making the decision.
This power does not require a guardianship order. It results from the ranking of substitute decision makers in section 20(1) the Health Care Consent Act, 1996 .[xviii] Health practitioners[xix] proposing treatment, for example, must first look to the ranking to identify who is authorized to make a treatment decision. If family or other higher ranked decision makers are not available, authorized or willing, someone at the PGT Office Treatment Decisions Unit will make the decision. The PGT can also be ordered to make a treatment decision by the Consent and Capacity Board following a Form G hearing.[xx]
The court can also order the PGT to make personal care decisions following a PGT investigation. These orders may be necessary where a person needs to be moved to prevent serious illness or injury, or deprivation of liberty or personal security due to the person’s mental incapacity.
On rare occasions, the PGT will agree to be appointed as an individual’s attorney for personal care or court-appointed guardian of personal care. Both require the PGT’s consent in writing.[xxi]
Arranging Legal Representation in Capacity Proceedings
The PGT can appoint lawyers to act for people who are the subject of a proceeding under the Substitute Decisions Act, 1992 if ordered to do so by the court.[xxii] These are commonly referred to as Section 3 counsel appointments, referring to the legislation authorizing it. These applications could include disputes about the validity of a power of attorney and for guardianship.
The PGT Office does not direct or instruct Section 3 Counsel. The Role of Section 3 counsel is to represent the allegedly incapable person.
Acting as Litigation Guardian and Legal Representative
The PGT may be appointed as a “Litigation Guardian” in a civil proceeding for a party under “disability”. This definition of disability includes children and people that are mentally incapable respecting the legal issue. The Children’s Lawyer is typically the Litigation Guardian of last resort for minors and the PGT can be appointed as a last resort for mentally incapable adults. Litigation Guardians can take any step the party could take if the party was capable including settling the case.[xxiii]
The PGT may similarly be appointed as a “Legal Representative” in a family law case. Rather than persons under disability, the Family Law Rules refer to a “special party” for a child or person who is or appears to be mentally incapable respecting an issue in the proceeding.[xxiv]
The PGT may also represent the interests of potential or unascertained heirs of Ontario residents in estate or trust disputes.
Reviewing Fiduciary Accounts
The PGT Office may review the accounts of private attorneys, guardians of property and estate and other trustees submitted to the court for approval. The OPGT then informs the guardian, estate trustee and the court of any issues or concerns which may need to be addressed.
The PGT can be appointed to administer an estate if the following conditions are met:
- The person dies in Ontario, or is a resident of Ontario but dies elsewhere.
- The person dies intestate as to some or all of his or her property, or dies leaving a will without naming an executor or estate trustee who is willing and able to administer the estate.
- There are no known next of kin who are residents of Ontario and are willing and able to administer the estate, or the only known next of kin are minors and there is no other near relative who is a resident of Ontario and is willing and able to administer the estate or to nominate another person to do so. [xxv]
Operation Of The Accountant Of The Superior Court Of Justice
The PGT operates the Accountant of the Superior Court of Justice (“Accountant”)[xxvi]. The Accountant holds funds paid into court plus interest until they are paid out pursuant to court order. The Accountant also administers monies received by the court to the credit of minors until they reach the age of majority or otherwise according to court order.
Public Guardian and Trustee: Protection of Charitable Property
The PGT Office reviews applications for charitable status to ensure they are in fact “charitable” and investigates allegations of the mis-use of charitable money. They can also assist with gifts by deceased persons to charities that no longer exist or were misidentified.
Here is a video of PGT counsel Ken Goodman on the role of the PGT Office in Charities:
Public Guardian and Trustee: More Information
The outline above touches on most of what the PGT Office does but still does not cover it all. For more information on the PGT’s programs and duties visit the PGT Website.
[xix] The Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, defines a “health practitioner” as “a member of a College under the Regulated Health Professions Act, 1991 or a member of a category of persons prescribed by the regulations”, subsection 2(1).