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When an individual is mentally incapable of making certain decisions, they may require a legally authorized substitute decision-maker to make them on their behalf. A guardian is one type of substitute decision-maker who is authorized by the Court or the Office of the Public Guardian and Trustee (OPGT). In this article, we discuss what guardianship is, the responsibilities of a guardian, and how guardianships are modified.
A guardian is an individual appointed by the court to make decisions on behalf of another individual who lacks the legal capacity to make certain decisions.
In Ontario, there are two types of guardians:
GUARDIAN OF PROPERTY
A guardian of property has the power to make decisions on behalf of the incapable individual regarding matters related to the individual’s property. However, this guardian cannot make a Will on behalf of the incapable individual and the scope of their decision-making authority is outlined in the conditions of the court order.
GUARDIAN OF THE PERSON
A guardian of a person has the power to make decisions regarding an incapable individual’s health care, shelter, nutrition, clothing, hygiene, or safety. Like all guardians, the scope of their decision-making authority is also outlined in the conditions of the court order.
NOMINATING GUARDIANS IN A WILL – TESTAMENTARY GUARDIANSHIP
If you have children who are minors, you can appoint a guardian for them in your Will. A guardianship clause in your Will can help guide suggestions as to your choice of guardian for your minor children, especially if you have a large family with many potential guardians who may step forward. These clauses can ensure that the Court and others stepping forward for the role consider your choice of guardian if needed.
However, this appointment is temporary, and only effective for 90 days after your passing. A formal guardianship application will need to be made to the Court for permanent guardianship.
RESPONSIBILITIES OF A GUARDIAN
It is important that a potential guardian carefully considers their fiduciary responsibilities before initiating an application. These are your responsibilities as a guardian:
DUTY OF LOYALTY
Guardians must make decisions in the best interest of the person they are representing. They must avoid conflicts of interest and acting for personal gain or preferences.
DUTY TO ACCOUNT & DUTY OF DISCLOSURE
Guardians must keep accurate records of their decisions, actions, and communications. They must ensure transparency of their actions.
DUTY OF CARE
Guardians must carry out their responsibilities with a reasonable degree of care and diligence. They must comply with their standards of care and any relevant court orders.
ENCOURAGING PARTICIPATION & ACTING IN CONSIDERATION
Guardians should try their best to consult with the incapable individual and encourage their participation in the decision-making process. They are expected to act in consideration of any known wishes or beliefs expressed by the incapable individual.
SEEKING PROFESSIONAL ADVICE
Guardians may need to seek advice and consent from healthcare and legal professionals, financial advisors, and other recommended advisors to make informed decisions.
CHALLENGING OR MODIFYING GUARDIANSHIP
Terminating or modifying a guardianship usually requires the intervention of the Court.
The common grounds for challenging or modifying a guardianship include:
- abuse, exploitation, neglect
- financial mismanagement
- conflicts of interest
- failure to act in the best interests of the incapable individual
- significant change of circumstances that affects guardian’s ability to fulfill their duties
To replace a guardian, the applicant would need to demonstrate to the court that the current guardian is not suitable or capable of fulfilling their duties, or that there is a change of circumstances necessitating a new guardian.
The lawyers at Sweatman Law are extensively experienced with guardianship applications. Contact us here to get in touch today!
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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All legal situations are unique and should be discussed with legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.
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