What is the Substitute Decisions Act?

The Substitute Decisions Act, 1992 was enacted by the Ontario legislature in 1992 and came into effect on April 3, 1995.  Subsequent amendments came into effect on March 29, 1996 at the same time that the earlier Consent to Treatment Act was repealed and replaced with the Health Care Consent Act, 1996.

The Substitute Decisions Act, 1992 provides a statutory framework for determining whether a person is capable of making property (financial) and/or personal care decisions (including non-health care decisions such as nutrition, housing, clothing, hygiene and safety).  Some people will be unable to make such decisions for themselves due to permanent or temporary conditions caused by illness, accident or disability.

For incapable persons, the Substitute Decisions Act, 1992 provides rules for the appointment of some types of substitute decision-makers  attorneys under a power of attorney, statutory guardians of property, and court appointed guardians and their duties and responsibilities.  It works alongside the Health Care Consent Act, 1996, which provides rules for determining capacity and substitute consent in three specific areas:  treatment decisions, admission to long-term care facilities, and personal assistance services (assistance or supervision with activities of daily living such as dressing, grooming, eating, drinking, ambulation, and positioning in Long-Term Care and Retirement Homes).

Substitute Decisions Act, 1992 – Capacity to Manage Property

What is the legal test for capacity to manage property?

Section 6 of the Substitute Decisions Act, 1992 (SDA) sets out the legal test for determining capacity to manage property:

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.

This legal test focuses on ability, not wisdom. A person may make foolish and unwise decisions in the management of his or her property and still be considered capable.  The test is objective.  As noted by the court in Koch (Re), 1997 CanLII 12138 (ON SC):  “The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.”

Further, a person’s mental health or cognitive diagnosis is not determinative of incapacity; a person may suffer some degree of cognitive or intellectual impairment and still be capable.  Mental capacity also exists if a person is able to make decisions with the assistance of others and recognizes this need for assistance.

The Substitute Decisions Act also includes a statutory presumption of capacity – all persons 18 years of age and older are presumed capable of entering into a contract.  Incapacity must be proved, typically by medical and other evidence, and the onus of proof is most often on the person alleging the incapacity.

If a person is incapable of managing property, a substitute decision-maker can be appointed in three different ways:  through a continuing power of attorney; through statutory guardianship; and through a court appointed guardianship.

Substitute Decisions Act, 1992: Attorneys for Property

What is a continuing power of attorney for property?

A continuing power of attorney for property (CPOAP) is a legal document in which a capable person (grantor) appoints another person (the attorney) to make property related decisions for him or her.  The appointed person does not need to be a lawyer; typically, attorneys for property are trusted family members or friends. Traditional Powers of Attorney lost effectiveness when a grantor lost mental capacity. The SDA added the legal concept of a CPOAP in Ontario to permit an attorney to continue acting beyond that point. The CPOAP “continues” even if the grantor becomes mentally incapable.

The CPOAP may authorize the named attorney to do on the grantor’s behalf anything in respect of property and finances that the grantor could do if capable, with the exception of making a will. The CPOAP may also limit the named attorney’s authority, for example, by explicitly stating that the attorney cannot manage certain types of property.  The CPOAP can also contain conditions on how the property is to be managed, for example by prohibiting certain types of investments, loans or sales of real property.

To make a CPOAP, the grantor must be at least 18 years old.  The named attorney must also be at least 18 years old.

A grantor does not need to be capable of managing property to give a CPOAP but must be capable of granting a CPOAP.  The legal threshold for giving a CPOAP is lower than the legal threshold for capacity to manage property.  A grantor will be capable of giving a CPOAP if he or she:

• Knows what kind of property he or she has and its approximate value
• Is aware of obligations owed to his or her dependents
• Knows that the attorney will be able to do on his or her behalf anything in respect of property that the person could do if capable, with the exception of making a will
• Knows that the named attorney must account for his or her dealing with the grantor’s property
• Knows that he or she may, if capable, revoke the CPOAP
• Appreciates that unless the named attorney manages the property prudently its value may decline; and
• Appreciates the possibility that the named attorney could misuse the authority given under the CPOAP

A grantor is capable of revoking a CPOAP if he or she is capable of giving one and may do so at any time.

A grantor may name one or more attorneys in the CPOAP.  If two or more attorneys are named, the attorneys must act jointly unless the CPOAP indicates otherwise.  The grantor may also name alternative attorneys who will act if the primary attorney is unable or unwilling to act.

Nothing in the Substitute Decisions Act forces a named attorney to accept the role.  Also, once an attorney has started to act, he or she can resign at any time. However, if an attorney has acted under the CPOAP, the resignation is not effective unless the attorney delivers a copy of the resignation to the grantor and any other attorneys named under the CPOAP.  In addition, unless the CPOAP provides otherwise, a copy of the resignation must also be given to the grantor’s spouse or partner and known relatives residing in Ontario if the attorney is of the opinion that the grantor is incapable of managing property and the CPOAP does not provide for the substitution of another attorney.

The CPOAP document need not be in any particular form but must be executed in the presence of two witnesses, each of whom are also required to sign the CPOAP.  The grantor’s spouse, partner, or child cannot act as witnesses.  Neither can the named attorney’s spouse or partner.  A person under the age of 18, and a person whose property is under guardianship similarly cannot act as witnesses.

When does a CPOAP become effective?

A CPOAP is effective immediately unless an alternative date is specifically specified in the document.

If a CPOAP comes into effect when the grantor becomes incapable but does not provide a method for determining whether that situation has arisen, then the CPOAP will come into effect when (a) the named attorney is notified in the prescribed form by an assessor that the grantor has been assessed and found to be incapable of managing property or (b) the named attorney is notified that a certificate of incapacity to manage property has been issued in respect of the grantor pursuant to the Mental Health Act (ie. during a psychiatric admission to hospital).

What are the powers and duties of an attorney for property?

Attorneys for property are fiduciaries; they are in a fiduciary relationship with the grantor.  As such, an attorney for property’s “powers and duties must be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit” [Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107 (CanLII)].

The attorney can only act for the benefit of the donor and is prohibited from using the CPOAP authority for his or her own benefit without the full knowledge and consent of the grantor.  If the grantor is incapable of managing property, the attorney’s position approaches that of a trustee. [See: s.32(1) Substitute Decisions Act which applies to both guardians of property and attorneys for property; Richardson Estate v. Mew, 2009 ONCA 403 (CanLII)]

An attorney for property is required to keep accounts of all transactions.  Specifically, an attorney for property must maintain:

• A list of all of the incapable person’s assets as of the date of the first transaction by the attorney (including real property, money, securities, investments, and motor vehicles)
• An ongoing list of assets acquired and disposed of on behalf of the incapable person
• An ongoing list of all money received on behalf of the incapable person, as well as an ongoing list of all money paid out on behalf of the incapable person
• An ongoing list of all investment made on behalf of the incapable person
• A list of all of the incapable person’s liabilities as of the date of the attorney’s first transaction, as well as an ongoing list of liabilities incurred and discharged on behalf of the incapable person
• An ongoing list of all compensation taken by the attorney (including a list of the assets and value of each used to calculate the attorney’s management fee, if any

An attorney under the CPOAP may take payment at a rate set out in law from the assets of the incapable person but this compensation may be subject to review by a Court. Attorneys acting with a CPOAP  may be required to apply to court to pass accounts at regular intervals for a review and approval of their activities including the compensation taken.

Substitute Decisions Act, 1992: Property Guardianship

A guardian of property is appointed to manage a person’s property only after the person is found to be incapable, as opposed to an attorney for property who is appointed in advance by a person capable of making a COAPC.  There are two kinds of guardianship for property:  statutory and court appointed guardianships.

Statutory Guardianship

Statutory guardians are appointed to manage property by operation of statute.  There is no need to bring a court application.

There are two ways in which a statutory guardianship is created.  The first relates to patients in a psychiatric facility.  The Public Guardian and Trustee (PGT) will become the statutory guardian of property for a patient in a psychiatric facility who is assessed as incapable of managing property [section 54 Mental Health Act].  If a physician examines a patient admitted to a psychiatric unit as incapable of managing property, the physician will issue a certificate of incapacity and send it to the PGT. The PGT will then commenced to manage the person’s property while the person remains in hospital.  Such assessments of psychiatric hospital inpatients are mandatory.

The physician may cancel the certificate of incapacity at any time if the person regains capacity (using the same legal test for capacity set out in section 6 of the Substitute Decisions Act ). If the person remains incapable throughout the hospital admission, the physician must examine him or her before discharge to determine whether to issue a certificate of continuance which will continue the PGT’s statutory property guardianship once the person is discharged from hospital.

Persons found incapable of managing property pursuant to the Mental Health Act under either a certificate of incapacity or a certificate of continuance may challenge one or both findings before the Consent and Capacity Board.

The second way in which a statutory guardianship is created relates to persons in the community, including patients in non-psychiatric units.  The PGT will become the statutory guardian of property if the person is assessed as incapable by an independent assessor who issued a certificate of incapacity. Unlike for psychiatric hospital inpatients, such community based assessments are not mandatory.  Community based assessments respecting capacity to manage property cannot be performed unless the assessor first explains to the person the purpose of the assessment, the effect of a finding of incapacity, and the person’s right to refuse to be assessed.  If a certificate of incapacity is issued to the PGT, the PGT must ensure that the incapable person is informed of the finding and of his or her right to challenge the finding before the Consent and Capacity Board.

If there is a CPOAP in existence when the PGT becomes an incapable person’s statutory guardian for property, the named attorney can apply to the PGT to replace the PGT as statutory guardian. The incapable person’s spouse or partner or any relative can also apply to replace the PGT. Such applications must include a management plan which outlines the incapable person’s assets, business interests, liabilities and expenses and how the applicant plans to manage the incapable person’s property. In deciding whether to appoint the applicant as statutory guardian, the PGT must consider the incapable person’s wishes in that regard and may require the applicant to provide security.

Court Appointed Guardians

Any person may apply to the court to have a guardian of property appointed for a person who is incapable of managing property if it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.  Such applications may be necessary where:

• Neither a COAPC or statutory guardianship is available or agreeable
• The person believed to be incapable refuses to be assessed
• The person seeking to be appointed as guardian is ineligible to apply to replace the PGT as statutory guardian
• There are grounds to believe that the named attorney under a COAPC or a statutory guardian is mismanaging the incapable person’s property
• There are disputes respecting the validity of a COAPC, or there are multiple COAPC’s naming different people as attorneys for property

A guardianship application must include a management plan outlining the incapable person’s assets, business interests, liabilities and expenses and how the proposed guardian plans to manage the estate.  Notice of the application must be given to the alleged incapable person who can retain a lawyer to respond to the application, or in many cases, the court will appoint a lawyer for him or her (often referred to as section 3 Substitute Decisions Act counsel).

Before a court can appoint a guardian of property, the judge must first find that the person is actually incapable of managing their property.  Sometimes this requires the court to issue an order that the person be assessed, with the use of force if necessary.

The court will not appoint a guardian if the court is satisfied that the need for decisions to be made will be met by an alternative course of action that does not require a finding of incapacity; and is less restrictive of the person’s decision-making right than the appointment of a guardian.

A proposed guardian must be at least 18 years old.  A person who provides health care or residential, social, training or support services to an incapable person for compensation cannot be appointed as the person’s guardian for property (this exception does not apply to the incapable person’s spouse, partner, relative, attorney for personal care, or attorney under a COAPC).  A person who does not reside in Ontario also cannot be appointed as a guardian for property unless the person provides security, in a manner approved by the court, for the value of the property.

A court order for the appointment of a guardian of property may require the guardian to post security and may impose any other conditions on the appointment that the court considers appropriate.  The appointment may also be time limited.

Duties and Powers of a Guardian of Property

Similar to attorneys for property, a guardian of property is a fiduciary who must act in the best interests of the incapable person. As such, the guardian of property must exercise his or her powers and duties diligently, with honest and integrity and in good faith, for the incapable person’s benefit. [s.32(1) Substitute Decisions Act ]  In doing so, a guardian of property must act in accordance with statutorily defined responsibilities and obligations, including:

• Must consider the incapable person’s comfort and well-being
• Must manage the property in a manner consistent with decisions concerning the incapable person’s personal care that are made by the person who has authority to make personal care decisions
• Must explain to the incapable person what the guardian of property’s powers and duties are
• Must encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property
• Must seek to foster regular personal contact between the incapable person and supportive family members and friends
• Must consult, from time to time, with the incapable person’s supportive family members and friends who are in regular personal contact with the incapable person, as well as persons from whom the incapable person receives personal care
• Like an attorney for property, a guardian of property must keep detailed accounts of all property management transactions

A guardian of property can receive compensation at a rate set out in law for the performance of his or her duties as guardian.  The guardian will be liable for damages resulting from a breach of his or her duties.

A guardian of property must also make expenditures out of the incapable person’s property that are reasonably necessary for the support, education and care of the incapable person and his or her dependants.  Mandatory expenditures also include any expenditures necessary to satisfy the person’s other legal obligations.  Expenditures must be tailored to the value of the property, the accustomed standard of living of the incapable person and his or her dependants and the nature of any other legal obligations of the incapable person.

Guardians of Property are usually required to apply to court to pass accounts at regular intervals for a review and approval of their activities.

Substitute Decisions Act, 1992: Role of the PGT in Property Matters

The Public Guardian and Trustee (PGT) has various duties set out in the Substitute Decisions Act .

The PGT must maintain a register of all statutory and court-appointed guardians of property. The PGT can be contacted to determine if an alleged incapable person has a guardian of property.

The PGT has a statutory duty to investigate any allegation that a person is potentially incapable of managing property and that serious adverse effects are occurring or may occur as a result.  If, as a result of that investigation, the PGT has reasonable grounds to believe that the person is incapable of managing property and that an immediate appointment of a temporary guardian of property is necessary to prevent serious adverse effects, the PGT must apply to the court for an order appointing the PGT as temporary guardian of the person’s property.

Notice of the PGT’s application must be served on the alleged incapable person, unless the court dispenses with the notice requirement.

If the court orders the PGT to act as temporary guardian, it may also suspend the powers of any attorney under a continuing power of attorney during the term of the temporary guardianship.  The PGT’s temporary guardianship may be ordered for a period not exceeding 90 days.

Temporary guardianships of this type may be terminated or varied on application by the PGT or the incapable person.

The PGT also reviews guardian of property applications and can be asked to approve amendments to the management plans of guardians of property.

Substitute Decisions Act, 1992:  Personal Care

What is the legal test for capacity to make personal care decisions?

A person is incapable of making personal care decisions if the person is unable to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

This legal test has two branches (similar to the test for capacity to manage property) – failing one part of the test is sufficient for a finding of incapacity.

The first branch – ability to understand the relevant information – often implicates a person’s cognitive ability to retain and process the relevant information.

The second branch – ability to appreciate the reasonably foreseeable consequences of a decision – refers to the person’s ability to apply the relevant information to his or her circumstances and to be able to weigh the foreseeable risks and benefits of a decision.

Although “personal care” is a term that covers a number of personal care decisions (health care, nutrition, shelter, clothing, hygiene or safety), a person may be found to be incapable only with respect to one or two aspects of personal care and capable with respect to all others.  For example, a person may be incapable of making antipsychotic treatment decisions, but capable of making decisions about diabetes treatment, housing and all other activities of daily living.

The legal test also focuses on ability, not wisdom.  In other words, making foolish or unwise decisions about housing, for example, does not mean that a person is legally incapable of making shelter decisions.

Similarly, a person’s incapacity is not determined by a medical diagnosis, although a medical diagnosis may be one factor considered in a capacity assessment.  For example, a person with dementia may nonetheless be capable of making all or most personal care decisions. Persons may be capable if they can make decisions with the help of others and recognize this need for assistance.

Capacity may also fluctuate with time.  A person may be incapable of making personal care decisions now, but regain capacity later (or be subject to fluctuating capacity / incapacity over time).

All persons who are 16 years of age or older are presumed capable of making personal care decisions.  The onus of proving incapacity is on the person alleging it.

Did you know? The Health Care Consent Act, 1996 also includes a test for capacity and appoints substitute decisions-makers for health care treatments proposed by regulated health professionals, admission to Long-Term Care Facilities and personal assistance services in Long-Term Care and Retirement Homes

Substitute Decisions Act, 1992: Attorneys for Personal Care

What is a power of attorney for personal care?

A power of attorney for personal care (POAPC) is a legal document through which a capable person (grantor) gives someone else (attorney) the authority to make some or all personal care decisions for him or her.  The POAPC only becomes effective if and when the grantor becomes incapable of making some or all personal care decisions on his or her own behalf.

A person cannot act as attorney under a POAPC if he or she provides health care to the grantor for compensation or provides residential, social, training or support services to the grantor for compensation (unless the attorney is the grantor’s spouse, partner or relative).

Two or more people can be appointed as attorneys under a POAPC and will be required to make decisions on the incapable person’s behalf jointly, unless the POAPC stipulates otherwise. The grantor may also name alternative attorneys who will act if the primary attorney is unable or unwilling to.

When making the POAPC, the grantor may include instructions to the attorneys, for example that the grantor does not want to be on life support in the event of a catastrophic illness where there is no prospect for recovery.  Such instructions can only be made if the grantor is actually capable of making the decision.  For example, a grantor who is incapable of making treatment decisions respecting antipsychotic medication cannot include instructions in the POAPC prohibiting the attorney from consenting to antipsychotic medication.

Did you know? Powers of Attorney for Personal Care are sometimes referred to as part of “Advanced Care Planning” but the Ontario Legislation refers to “wishes” and “instructions”. “Advanced Care Planning” is not a term in Ontario legislation.

A grantor must be at least 16 years of age to make a POAPC.  A named attorney must also be at least 16 years of age.

While a grantor does not need to be capable of making personal care decisions to make a POAPC, he or she must be capable of making a POAPC.  The legal threshold for capacity to make a POAPC is lower than the legal threshold to make the various personal care decisions.  A person is capable of giving a POAPC if the person:

• has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
• appreciates that the person may need to have the proposed attorney make decisions for the person.

A person who is capable of making a POAPC is also capable of revoking it.

Nothing in the Substitute Decisions Act forces a named attorney to accept the role.  Also, once an attorney has started to act, he or she can resign at any time. However, if an attorney has acted under the POAPC, the resignation is not effective unless the attorney delivers a copy of the resignation to the grantor and any other attorneys named under the POAPC. In addition, unless the POAPC provides otherwise, a copy of the resignation must also be given to the grantor’s spouse or partner and known relatives residing in Ontario.

The POAPC document need not be in any particular form but must be executed in the presence of two witnesses, each of whom are also required to sign it.  The grantor’s spouse, partner, or child cannot act as witnesses.  Neither can the named attorney’s spouse or partner.  A person under the age of 18, and a person whose property is under guardianship similarly cannot act as witnesses.

When does a POAPC become effective?

A POAPC only becomes effective if and when the grantor becomes incapable of making personal care decisions, or the named attorney has reasonable grounds to believe that the grantor has become incapable.

The grantor could be found incapable of making treatment decisions, decisions about admission to long term care, or personal assistance services under the HCCA, in which case the named attorney would be authorized to make these types of decisions for him or her.

Or, the decision that needs to be made is not covered by the HCCA (for example, nutrition, shelter, safety) and the attorney has reasonable grounds to believe that the grantor is incapable of making the required decision.  This is subject to any conditions in the POAPC that prevent the attorney from acting unless the grantor’s incapacity has first been confirmed (typically by way of assessment by a physician, capacity assessor or evaluator).  The question of capacity is sometimes required to be determined by a judge by way of court application.

Special provisions in POAPCs

A grantor may include “special provisions” in a POAPC that would preclude him or her from resisting or challenging the attorney’s decisions if and when the person becomes incapable respecting personal care in future.  These clauses are sometimes referred to as “Ulysses” clauses.

These types of clauses may authorize an attorney and any other person under the direction of the attorney to use force that is necessary and reasonable in the circumstances to:

• determine whether the grantor is incapable of making decisions to which the HCCA applies (treatment, admission to long term care, and personal assistance service decisions)
• confirm whether the grantor is incapable of personal care
• to obtain an assessment of the grantor’s capacity
• to take the grantor to any place for care or treatment, to admit the grantor to that place, and to detain and restrain the grantor in that place during the care or treatment

These types of clauses can also waive the grantor’s right to apply to the Consent and Capacity Board to challenge incapacity findings respecting treatment, admission to long term care, or personal assistance services.

A grantor may revoke these clauses only if within 30 days of the revocation, an assessor has assessed the grantor and confirmed that he or she is capable of personal care.

Substitute Decisions Act, 1992: What are the Powers and Duties of an Attorney for Personal Care?

An attorney for personal care, like an attorney for property, is a fiduciary.  He or she must make personal care decisions for the incapable grantor in furtherance of the grantor’s interests, rather than the personal interests of the attorney.

An attorney for personal care must:

• must perform his or her duties diligently and in good faith
• must explain to the incapable grantor what his or her duties are
• must encourage the incapable person to participate, to the best of his or her abilities, in the attorney’s decision-making
• must seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person
• as much as possible, the attorney must seek to foster the incapable person’s independence
• the attorney must choose the least restrictive and least intrusive court of action that is available and appropriate
• must keep a record of all decisions made on the incapable person’s behalf
• must make decisions on the incapable grantor’s behalf to which the HCCA applies (treatment, admission to long term care, personal assistance services)
• if decisions must be made to which the HCCA does not apply, the attorney must make decisions in keeping with the following principles:
• prior capable wishes (an attorney must use reasonable diligence in ascertaining whether any prior capable wishes apply to the decision)
• if there are no known prior capable wishes or instructions, decisions must be made in the incapable person’s best interests
• “best interests” require weighing the incapable person’s values and beliefs alongside whether the decision is likely to improve the incapable person’s quality of life or prevent his or her quality of life from deteriorating, or reduce the rate at which his or her quality of life will deteriorate; and whether the benefits of a particular course of action or treatment outweigh the risks

The attorney cannot use confinement or monitoring devices or restrain the incapable person physically or chemically unless necessary to prevent serious bodily harm to the incapable person or others, or if such a course of action allows the incapable person greater freedom.

Substitute Decisions Act, 1992: Guardianship of personal care

A guardian for personal care is court appointed.

A guardian for personal care can be appointed by a court on any person’s application only if (a) the person for whom guardianship is sought is actually incapable of making personal care decisions; and (b) and decisions need to be made for the incapable person.

Guardianship is often considered a last resort given the expense of court proceedings and the availability of other options (such as POAPCs and the rules for capacity and substitute decision-making in the HCCA).

Guardians for personal care are typically appointed where there is no POAPC and the types of decisions that need to be made exceed the types of decisions covered by the HCCA (treatment, admission to a long term care home, personal assistance services), or where there are competing POAPCs and disputes about their validity.  Guardianship may also be sought where an attorney under a POAPC has resigned, or has become incapable, or in cases where an attorney has been acting improperly.

A court will not appoint a guardian for personal care if there is an alternative course of action that does not require declaring the person for whom guardianship is sought as incapable and if there is a less restrictive approach, such as confirming the validity of a POAPC.

Guardianship orders can be full or partial depending on the incapacity finding.

Under an order for full guardianship, the guardian will be subject to a court approved guardianship plan.  In addition, the guardian may:

• Exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety
• Act as the incapable person’s litigation guardian, except in respect of litigation that relates to the incapable person’s property or to the guardian’s status or powers
• Settle claims and commence and settle legal proceedings on the incapable person’s behalf, except claims and proceedings that relate to the incapable person’s property or to the guardian’s status or powers
• Access the personal information, including personal health information, of the incapable person
• Make decisions to which the HCCA applies (treatment, admission to long term care, personal assistance services)
• Make decisions about the incapable person’s health care, nutrition and hygiene, employment, education, training, clothing, recreation and social services

A guardian for personal care is a fiduciary.  He or she has the same duties and obligations as an attorney for personal care, as discussed above. The additional duty of a guardian is to act in accordance with the court approved guardianship plan.

Substitute Decisions Act, 1992: Role of the Public Guardian and Trustee in Personal Care Matters

The PGT must investigate any allegation that a person is incapable of personal care and that serious adverse effects are occurring or may occur.  If, as a result of the investigation, the PGT has reasonable grounds to believe that the person is incapable of making personal care decisions and that the prompt appointment of a temporary guardianship is necessary to prevent serious adverse effects, the PGT must apply to the court for an order appointing the PGT as temporary guardian.

Notice of the PGT’s application must be served on the alleged incapable person and his or her attorney for personal care (if one exists) unless the court dispenses with the notice requirement.

A court may appoint the PGT as temporary guardian for a period not exceeding 90 days.

If the PGT has custodial power over the person and the court is satisfied that it is necessary to apprehend the incapable person, the court may authorize the PGT to do so.  The PGT may apprehend the person with the assistance of a police officer and search for and remove the person using such force as may be necessary.

The PGT’s temporary guardianship may be terminated or varied on application by the PGT or the incapable person.

The PGT is required to keep a register of all guardians appointed by a court to make personal care decisions for incapable people.

The PGT also reviews guardian of personal care applications and can be asked to approve amendments to the guardianship plans of guardians of personal care.

Did you know? The PGT is also the SDM or substitute decision-maker of last resort for incapable individuals under the Health Care Consent Act, 1996, including treatment by regulated health professionals and admission to long-term care among other things.

Substitute Decisions Act, 1992: Capacity assessments

When a guardianship application is filed, the court may order that the alleged incapable person’s capacity be assessed and may in some circumstances authorize the use of force to obtain the assessment.

An alleged incapable person may also agree to an assessment conducted without a court order.  However an assessor cannot perform such an assessment if the person refuses to be assessed.  Also, the assessor is required, before performing the assessment, to explain to the alleged incapable person:  the purpose of the assessment; the significance and effect of a finding of capacity or incapacity; and the person’s right to refuse the assessment.  These requirements do not apply if an assessment is being conducted pursuant to a court order for assessment, or pursuant to a Ulysses clause in a POAPC.

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