Statutory guardianship is a potential alternative to court-applications for guardianship of property in Ontario.
Incapacity and Guardianship of Property
Guardianship of property may be necessary to make decisions for individuals who are mentally incapable of managing property and who have not created a Continuing Power of Attorney appointing someone as attorney for property. The Substitute Decisions Act, 1992 (“SDA”) defines property management incapacity as follows:
6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Paths to Guardianship
There are two paths to guardianship of property for supportive family members and friends. The first is an application to the court under section 22 of the SDA. The second path is through the appointment of the Public Guardian and Trustee (“PGT”) as statutory guardian of property and an application to replace the PGT.
A physician-issued certificate of incapacity under Part III of the Mental Health Act is one way of initiating statutory guardianship. This option requires the incapable person to be a patient in a pyschiatric facility. Additionally, a finding of property incapacity by a capacity assessor in the community also initiates statutory guardianship. This post explores statutory guardianship from the community in more detail.
Obtaining statutory guardianship from the community involves two steps: (1) requesting a capacity assessment by a Capacity Assessor; and (2) preparing a management plan for the application to replace the PGT.
Initiating A Statutory Guardianship from the Community
The request for a capacity assessment is made under section 16 of the SDA in writing using a Form 4. This form can be signed by anyone, including the potentially incapable person. Importantly, the person signing must have reason to believe the person to be assessed is incapable and made reasonble inquiries to confirm that that there is no Continuing Power of Attorney and no other relative intends on applying to court for guardianship: SDA subsection 16(2).
The signed Form 4 must be provided to a Capacity Assessor. The PGT-managed Capacity Assessment Office maintains a list of assessors organized by location, language, and specialities. The cost for the assessment can vary depending on the assessor and work involved for the individual person assessed.
Did you know: If funds are not available to pay for the assessment, financial assistance may be available. The Capacity Assessment Office has provided further information on financial assistance online.
The assessment cannot take place if the person refuses the assessment. Importantly, a refusal is positive expression of wishes not to be assessed. A person who cannot express a refusal at all can be assessed.
At the end of the capacity assessment, the assessor will make a determination of the person’s capacity. If the conclusion is that the person is incapable of managing property, the assessor provides a certificate of incapacity to the PGT and the statutory guardianship is created.
Applying to Replace the PGT
From the date the certificate is received, the PGT has full authority to manage the incapable person’s property. Any urgent property issues should be brought to the attention of the PGT so that they know they need to act quickly. Subject to addressing urgent issues, the PGT typically does not start acting immediately. Instead, they ask family members if anyone intends on applyilng to replace them as statutory guardian under section 17 of the SDA.
The application to replace the PGT requires a management plan in a Form 2 under the SDA. The management plan outlines what the person applying will do to manage the incapable person’s property. The PGT office provides comments and recommendations when they review proposed plans. The application to replace the PGT also requires a Form 1 under the SDA, which is the application itself. Helpfully, the PGT has published a guide with more information for anyone applying to replace them as statutory guardian.
Did you know: If the PGT refuses an application to replace them, the applicant is entitled to the reasons for the decision in writing. Also, if you dispute the refusal in writing, the PGT has to apply to court to decide the matter.
Once the PGT (or court) approves the replacement application, the applicant becomes the guardian of property with all the same powers and duties of a court-appointed guardian of property.
Other alternatives to court appointments for guardianship of property can include trusts, and trusteeship of government benefits such as Ontario Income Security, Canada Pension Plan, Ontario Disabilty Support Plan and Ontario Works.
Is Statutory Guardianship Right For You?
Like many legal issues, the answer is not always straight forward. A review of circumstances on a case by case basis is necessary in order to make a legal recommendations. Statutory guardianship can be a faster and more accessible process than an application to court for guardianship of property. It may not be the best option for all cases, however.
PBP lawyers provide consultations on the best approach for you and your potentially incapable loved ones. Feel free to contact us to discuss your situation.