“Serious Adverse Effects” has a specific meaning under the Substitute Decisions Act (“the Act”). When a person is alleged to be incapable of personal care, the Public Guardian and Trustee (“PGT”) shall, under s. 62(2), investigate when “serious adverse effects are [alleged to be] occurring or may occur.” Although the statute is not clear if the list is exhaustive, serious adverse effects under s. 62 of the Act consist of “serious illness or injury, or deprivation of liberty or personal security.”
The Act does not require any formality for a member of the public to bring allegations to the attention of the PGT. The PGT has a Guardianship Investigations Unit which can be contacted at jus.g.fjs.pgt.guardianshipinvestigation@ontario.ca / 416-327-6348.
While key themes of the Act are the presumption of capacity and the respect for the liberty of the individual, s. 62 would appear to operate as something akin to a notwithstanding clause that allows the Court, on application by the PGT, to do such things as: (i) override the necessity for personal service on the alleged incapable, (ii) appoint the PGT as temporary guardian for no more than 90 days, and (iii) suspend the operation of any existing Power of Attorney for Personal Care.
But what if an application for guardianship of the person by a concerned family member makes allegations that a person is incapable of personal care and that serious adverse effects are occurring or may occur as a result? Surely the court will look to the statute for a remedy where delay could result in “serious illness or injury, or deprivation of liberty or personal security.”
Section 62 would appear to be a powerful toolkit for any judge presiding over a matter of guardianship of the person. While guardianship proceedings often get bogged down for months over such issues as the appointment of s. 3 counsel, the completion of a capacity assessment, production of responding material, and examinations, such must not be the case when the alleged incapable person is at risk.
Moreover, if an urgent court date is obtained on notice to the PGT that raises the risk of serious adverse effects, it would seem apparent that the usual process of investigation should adapt accordingly in the best interests of the alleged incapable person at risk.
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