In the recent decision of Loyer et al v. Loyer et al, 2024 ONSC 3342, the applicants, who were the father and stepmother of an individual with a disability, sought among other things a Court order for the prospective appointment of substitute joint guardians. They requested that these substitute guardians be appointed in the event that they were no longer able to act, were to die, become incapable, were unwilling to continue, or were removed by the Court. The Court, having determined that the individual was incapable of managing her property and making decisions regarding her healthcare, approved the appointment of her father and stepmother as joint legal guardians, but refused to order the prospective appointment of substitute guardians.
As to the issue of appointing substitute guardians, the Court provided the following analysis:
The Court noted that this issue necessitates a statutory interpretation of the relevant provisions of the Substitute Decision Act (the “Act”). According to the Court, the text, purpose, and context of the Act indicate that the legislature did not intend to permit the prospective appointment of substitute guardians. Sections 26(1) and 61(1) of the Act outline procedures for varying an order appointing a guardian or substituting another person as guardian, but the Act does not provide for the prospective appointment of substitute guardians. The Court further noted a contrast with the provisions concerning powers of attorney on this issue. Sections 11(1)(c) and 11(1)(d)(ii) of the Act allow for the appointment of a substitute attorney under a continuing power of attorney. The Court concluded that the difference in these statutory schemes arises from the nature of the appointments and the vulnerability of the individuals involved. A power of attorney reflects the personal autonomy and will of the grantor, whereas a Court-appointed guardian is designated for an individual who has been determined to lack capacity to make decisions.
The Court confirmed that when appointing a guardian, the Court’s primary duty is to the best interests of the person lacking capacity. Consequently, the Court must consider the factors outlined in Sections 24(5) and 57(3) at the time of the application for a court appointed guardian. This assessment involves evaluating the proposed guardian(s) and their plan in the context of the circumstances of the individual lacking capacity. As the life circumstances of proposed substitute guardians and their relationships with the person lacking capacity may change over time, these factors shall be determined at the time of application.
While acknowledging the vulnerability of individuals whose Court-appointed guardian dies or becomes unable to function and the practical concerns such as cost and delay in appointing substitute guardians, the Court emphasized that the best interests of the person lacking capacity take precedence, as the Court can address urgent situations on an expedited basis when necessary.
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