The case of Public Guardian and Trustee v. Ochan, 2023 ONSC 5861 (CanLII) involved a disagreement between the Public Guardian and Trustee (the “PGT”) and the parents of a severely incapable man regarding the best path forward for managing the incapable’s property and personal care.
Background
The PGT applied to become the incapable’s guardian of property and guardian of the person. The parents did not consent to the PGT’s appointment and asked the Court to appoint them instead.
The PGT’s plan was to move the incapable into a care home that he regularly visited on a full-time basis, while the parents submitted that their son ought to continue living with them at the family home.
The PGT raised concerns about the parents’ substandard level of care they had historically provided, and deficiencies in the parents’ proposed management plan, while the parents pointed to instances in which their son had returned from the proposed care home in poor shape.
The incapable, through his lawyers, indicated that he did not want the PGT to become his guardian, as he did not want them to have the authority to decide where he lives. Rather, he wished to continue living at home under the care of his parents.
The Court’s Analysis
In deciding whom to appoint as guardian, the Court enumerated the following principles:
- that the fundamental factor to consider is what is in the best interests of the incapable person (Consiglio v. Consiglio, 2012 ONSC 4629, at para. 37);
- that the Court shall consider: (a) whether there is an attorney for the incapable person under a continuing power of attorney; (b) the incapable person’s wishes (if they can be determined); and (c) the closeness of the relationship between the proposed guardian(s) and the incapable person (Wong v. The Office of the Public Guardian and Trustee, 2017 ONSC 268, at para. 5);
- an incapable person’s wishes that someone be or not be appointed as their guardian should be accorded significant consideration, but they do not dispose of the issue (Lazaroff v. Lazaroff, 2005 CanLII 44834 (ON SC), at para. 17);
- that the appointment of a guardian against the wishes of the incapable person is to be avoided where possible to prevent the imposition of a distressing situation on the person [Ontario (Public Guardian and Trustee) v. Martins, 2021 ONSC 1623, at para. 21];
- that the guardian shall choose the least restrictive and intrusive course of action that is available [Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”), s. 66(9)]; and
- a guardian shall, as far as possible, seek to foster the person’s independence: [SDA, s. 66(8)].
Decision
The Court appointed the parents as their son’s joint guardians of property and the person.
The Court strongly considered the son’s personal autonomy of choice and his own expressed preference in finding that his best interests were suited by staying with his parents.
However, the Court shared the PGT’s concerns about the parents’ quality of care they had historically provided to their son, notwithstanding recent improvements they had made. Accordingly, the Court only issued the guardianship order for a specified duration, to allow for the matter to return before the Court after a suitable interval for further scrutiny.
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