Introduction
Substitute Decisions Act, 1992 (SDA) was enacted by the Ontario government after a lengthy and detailed review of the law governing powers of attorney and substitutute decision making in Ontario. A comprehensive statutory framework was created governing substitute decision making with respect to both property and personal care.
It also included the concept of a “statutory guardian of property” and established the complete procedure for court-appointed guardians of (i) property, and (ii) the person.
Difference between Guardian and Attorney
A guardian is different from an attorney. An attorney is chosen by a person, before becoming incapable, to act on their behalf. A guardian is appointed through a legal process after a person’s incapacity.
A guardian of property is someone who is appointed by statute (the Substitute Decisions Act, 1992) or the court to look after an incapable person’s property. Both the guardian and the incapable person must be at least 18 years old. A court may appoint a guardian of the person to make decisions on behalf of an incapable person in some or all areas of personal care, usually because there is no power of attorney for personal care. The guardian must be at least 16 years old.
Procedure of appointment of Guardian
“Standard procedure” and the “summary disposition procedure” are two ways for the appointment of court-appointed guardian of property or personal care.
One major difference between the two “Standard procedure” and the “summary disposition procedure” is that standard procedure requires a hearing, and the summary procedure is “over the counter,” meaning the application is read by a judge in chambers without a hearing. Instead, two assessments (at least one by an official “assessor”) are required in the summary disposition procedure.
Requirements and procedure for the appointment of guardian of property under both “Standard procedure” and the “summary disposition procedure” is detailed below:-
Guardian of Property | Standard Procedure | Summary Procedure |
Hearing | Hearing is required | No hearing is required. Over-the-counter application is read by judge in chamber, but the application must contain statements from at least two medical assessors, OR one assessor and another person who saw the person within one year before issuance of notice of application. |
Documents required | 1. Proceeding commenced by notice of application (SDA s. 22(1)), seeking a finding that the person is incapable of managing property, and, consequently, it is necessary to appoint a guardian of property.
2. Personal service of notice of application on respondents (SDA s. 69(1), (6), (8), (9):
● the alleged incapable person;
● the person’s guardian;
● attorney under continuing POA;
● attorney for personal care;
● Public Guardian and Trustee; AND
● the proposed guardian of property, if not the applicant
3. Some relatives must be served by ordinary mail (SDA s. 69(6)), but they are not automatically respondents, including spouse/ partner, adult children; parents; AND adult siblings.
4. Applicant’s affidavit is required unless the applicant intends to call viva voce evidence.
Affidavit evidence is not to be on “information and belief”, except for uncontentious facts.
5. Separate management plans must be filed for guardianship of property, and guardianship of the person.
6. Medical affidavits are generally required as a practical matter, but not necessary in SDA: EITHER a capacity assessment by a duly-qualified assessor, OR at least two affidavits from physicians (Re Avery). | Notice of application, and applicant’s affidavit with exhibits as the core of the application record.
Additional capacity assessment is required.
● The person must meet with the alleged incapable person and provide statement in a prescribed form. The assessors use Capacity Assessment, s.7, Form A, and the non-assessors use General, Form 8.
● Assessor must be a member of a college listed in Capacity Assessment regulation.
● Assessment must have been made during the six months before the notice of application was issued.
● Prescribed form of statement for the assessor includes a statement that indicates they are of the opinion that it is necessary to appoint a guardian of property to make decisions on the allegedly incapable person’s behalf. The basis of this opinion must be set out. |
Service of Application Record | Personal service is required upon respondents.
Ordinary mail is required upon specified relatives. | Notice of application issued after assessment.
Procedure same as standard. |
Response to Service of Application Record | Respondent who wish to participate in the proceeding must deliver a notice of appearance.
Specified Relatives can become parties at any stage. | Procedure same as standard. |
Court Hearing and Judgment | Finding is required that the person is incapable, and, consequently, it is necessary for decisions to be made on person’s behalf (SDA s. 25(1)). Judgment should include specific statement appointing guardian (SDA s. 22(1)). Joint or multiple guardians of different property are possible.
Judgment must detail any security to be posted.
Guardian of property must adhere to management plan (SDA s. 32(10)), but guardian can apply to court for directions (SDA s. 39(1)).
Judgment should also address costs. | Judges are reluctant to declare incapacity without a hearing.
After time for delivery of notices of appearance has expired, applicant can require that the registrar submit the documents directly to a judge, and the judge may make a judgment without a hearing (SDA, s.77(1)).
The registrar must do so IF the applicant certifies that (SDA, s.77(2)):
● no notice of appearance has been delivered;
● appropriate documents have been submitted; AND
● at least one statement indicates that its maker is of the opinion that it is necessary for decisions to be made on the person’s behalf by a person who is authorized to do so.
NOTE that notice of appearance must be filed “forthwith”, so hard to know when to certify that it has not been filed.
Draft judgment is not necessary in application.
● But if applicant is seeking costs payable out of the property, it must be set out in a draft judgment.
Three possible dispositions: (i) judgment without a hearing; (ii) additional evidence or hearing required; OR (iii) order a trial. |
Requirements and procedure for the appointment of guardian for personal care under both “Standard procedure” and the “summary disposition procedure” is detailed below:-
Guardian of the Person | Standard Procedure | Summary Procedure
Standard procedure + two assessments by assessors |
Documents required | 1. Notice of application, seeking a finding that the person is incapable of some/all personal care functions set out in SDA s.45, AND a finding that the person needs decisions made on her behalf by an authorized person.
2. Applicant’s affidavit explaining application for full or partial guardianship of the person.
Section 45 lists the categories of decision-making.
3. A capacity assessment/ medical affidavits (no statutory requirement, but generally required by the court to record a finding of incapacity).
4. Proposed guardian’s consent to act.
5. Section 70(2)(c) statement.
6. Guardianship plan using General, Form 3 (s.70(2)(b)).
7. Consents from relatives are helpful, but not necessary.
8. Optional third-party statements from persons knowing the alleged incapable person (SDA s.71(1)), and in contact with the alleged incapable person during the preceding 12 months.
Preferably sworn as affidavits. | Standard procedure + two assessors must meet the alleged incapable person, perform an assessment of the person’s capacity during the six months before the notice of application is issued, AND provide statements in the prescribed form.
At least one statement must specify that the assessor believes that the person needs decisions made on her behalf by an authorized person.
Medical affidavits may be necessary, but it isn’t clear.
Preparing application record is the same as the standard procedure for guardianship of person. |
Service | Same as guardianship of property. | Same as standard procedure for guardianship of person. |
Response | Same as guardianship of property. | Same as standard procedure for guardianship of person. |
Court hearing and judgment | Considers criteria in SDA ss 55(2)(a)-(b) and 57(3)(a)-(c).
Judgment must specify full or partial guardianship (SDA s. 58(3)).
● Full only if person incapable of all functions in SDA s. 45).
● If partial, judgment must specify the functions.
Judgment may appoint joint guardians or multiple guardians to act for mutually exclusive time periods (513R).
Judgment may specify limited time period (SDA s. 58(2)(a)) or conditions (SDA s. 58(2)(b)).
Guardians may have authority to apprehend the person with police assistance (SDA s. 59(3)), to change the person’s custody or access arrangements, or to consent to adoption (SDA s. 59(4)(b)).
Guardian must act in accordance with guardianship plan (SDA s. 66(15). Good practice to get judgement direction that states this specifically. | Same as summary disposition procedure for guardianship of property.
At least one of the two assessors’ statements must indicate assessor is of opinion that the person needs someone authorized to make decisions on the person’s behalf (Capacity Assessment s.7, Form B).
Three possible disposition since same as summary disposition procedure for guardianship of property. |
Health Care Consent Act, 1996 (HCCA) and Substitute Decision-makers
Consent can be given or refused on behalf of incapable person based on a ranked list of priority
(s. 20 of the HCCA), from most priority to least:
- person’s guardian of the person
- person’s attorney of personal care
- person’s representative appointed by the Consent Capacity Board
- person’s spouse or partner
- person’s child, parent (but not parent with only right of access or if there is an agent of children’s aid society in place of parent),
- parent with only a right of access
- person’s sibling
- other relative (including separated spouse under s. 20(1)).
HCCA, s.20(2) – person can only consent or refuse to consent to treatment on behalf of an incapable person IF :-
- capable with respect to the treatment;
- at least 16 years old, unless the person is the incapable person’s parent;
- not prohibited by court order or separation agreement from having access, or giving/refusing consent; AND
- available and willing to assume responsibility.
- If there is no one meeting this description, then the Public Guardian and Trustee decides (515R) (s. 20(5))
If the incapable person is at least 16 years old and objects to admission to a hospital or psychiatric facility, then consent can only be given by
(i). a guardian of the person with the authority to consent to the admission, OR
(ii). an attorney for personal care with authorizing provision. (s. 24, HCCA)