In the case of Francois v. Francois, 2025 ONSC 589 the Ontario Superior Court of Justice considered whether a person previously found incapable of managing their property could later bring a motion to have someone else appointed as their guardian. The Court answered this question in the negative.
Background
In 2012, Stephanie was declared mentally incapable of managing her property under Ontario’s Substitute Decisions Act, 1992 (SDA). The Court appointed her former spouse, Patrick, as her guardian of property.
By 2025, Stephanie wished to replace Patrick with another individual, John, and brought a motion to the court seeking his appointment in Patrick’s place.
Issues
The motion raised two key legal questions under the SDA:
- Can a person who has been declared incapable of managing property bring a motion on their own behalf?
- Once a person has been found incapable, can their preference for a new guardian still be considered by the court?
Analysis
The Court reaffirmed the principle that individuals who understand and appreciate the consequences of their decisions have the right to autonomy and self-determination, citing the decision of Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32.
However, it also referred to Rule 7.01 of the Rules of Civil Procedure, which requires that individuals under disability shall be represented by a litigation guardian when commencing or participating in legal proceedings. Stephanie brought the motion in her own name, without such representation—contrary to the Rules.
Although the Public Guardian and Trustee did not oppose the change in guardianship, it deferred to the Court’s discretion, given that the original incapacity finding remained in effect.
Justice Myers addressed a key point: if Stephanie has the capacity to choose who manages her property, she may also have the capacity to grant a power of attorney—potentially making guardianship unnecessary.
John, the proposed new guardian, argued that even if Stephanie granted a power of attorney, financial institutions and structured settlement custodians would still require a court order to lift the guardianship. He maintained that this would result in unnecessary cost and delay, especially when the motion could have resolved the issue directly.
The Court noted that the original assessment might no longer reflect Stephanie’s current condition. However, the procedural rules serve a protective function and are not to be overlooked. As long as the legal finding of incapacity stands, Stephanie must be treated as a person under disability for the purpose of court proceedings.
Importantly, other lawful avenues were available: John could have applied to be appointed as guardian himself, or someone could have stepped in to act as Stephanie’s litigation guardian. Instead, she attempted to proceed independently, which was not in compliance with the applicable rules.
Decision
The Court dismissed the motion—not because it lacked merit—but because it failed to comply with essential procedural requirements. The 2012 incapacity order created a legal barrier that prevented Stephanie from bringing the motion without proper representation.
Justice Myers emphasized that these procedural safeguards are not mere technicalities, but critical protections for individuals who are legally incapable.
Conclusion
This decision underscores the critical importance of adhering to proper legal procedures in guardianship matters. Even if an individual believes they have regained capacity or wishes to replace their current guardian, a standing legal finding of incapacity prevents them from acting independently in court.
At the same time, the case highlights the complex tension between protecting vulnerable individuals and respecting their evolving autonomy. However, as long as the incapacity finding remains in place, any attempt to change a guardianship arrangement must proceed through the appropriate legal channels to ensure both protection and fairness.
Thanks for reading!