In Ontario, the Substitute Decisions Act governs who can act as a guardian on behalf of individuals who are unable to make decisions for themselves due to mental or physical incapacity. The law seeks to protect vulnerable persons and ensure that their interests are safeguarded by responsible decision-makers.
Who Can Be a Guardian?
A guardian is a person who is appointed by the court to make personal care or property decisions for someone who is incapable of making those decisions themselves. A guardian can be a family member, a friend, or a professional. The court will consider the wishes of the person who is unable to make decisions when deciding who should be appointed as their guardian.
Types of Guardianship in Ontario
- Guardians of the person: A personal care guardian is responsible for making decisions about an incapable person’s care, including their health, medical treatment, and living arrangements.
- Guardians of property: A property guardian is responsible for managing an incapable person’s financial affairs, including paying bills, managing investments, and selling property.
The court may appoint the same person as both a personal care and property guardian, or it may appoint different people to each role.
How is Guardianship Established?
Guardianship is established through the legal process of an application for guardianship. The application can be made by a family member, a friend, or a professional, and it is made to the court. The application must include medical evidence that the person is incapable of making decisions for themselves, and it must also include information about the proposed guardian’s qualifications and suitability.
Once an application for guardianship is made, the court may appoint a lawyer for the person who is the subject of the application to represent their interests. The court may also appoint an assessor, who is a medical professional, to assess the person’s capacity.
The court will then hold a hearing to determine whether guardianship is necessary and who should be appointed as the guardian. The court will consider the medical evidence, the wishes of the person who is the subject of the application, and the qualifications and suitability of the proposed guardian.
Once a guardian is appointed, they have a legal duty to act in the best interests of the person who is incapable of making decisions for themselves. They must make decisions that are consistent with the person’s values, beliefs, and wishes.
Guardianship of Minors
The Children’s Law Reform Act (the CLRA) is another important piece of legislation in Ontario that relates to guardianship law. The CLRA governs custody of and access to children, as well as the rights and obligations of parents, guardians, and other parties in relation to children.
Under the CLRA, a parent or other party can apply for custody of a child. Custody refers to the right to make major decisions about a child’s care and upbringing, including decisions about their education, health care, and religious upbringing. The court can grant sole custody to one parent or joint custody to both parents.
In addition, the CLRA provides for access, which refers to the right of a non-custodial parent or other party to spend time with the child. The court will consider the best interests of the child when making decisions about custody and access.
The CLRA also provides for the appointment of a guardian of property for a minor child. This is similar to the appointment of a property guardian for an incapable adult, but the focus is on managing the child’s assets until they reach the age of majority.
Overall, the Children’s Law Reform Act and guardianship law in Ontario are closely related in that they both seek to protect vulnerable individuals and ensure that responsible decision-makers are appointed to make decisions on their behalf.
Thank you for reading and have a great day!
Suzana Popovic-Montag & Geoffrey Sculthorpe