Guardianship Disputes in Ontario
Guardianship disputes are among the more painful aspects of caring for a beloved parent or other relative. If there is no power of attorney in place and a person starts to lack capacity, a guardianship dispute may ensue. The question whether a person lacks capacity to make financial and personal care decisions is a difficult one. If it is determined that a person does indeed lack capacity, then that person will require the appointment of a guardian. A guardian is a person appointed by the Court to make critical financial and personal care decisions for the incapable person. Deciding who should be appointed as a guardian can be contentious and emotionally challenging for all parties involved.
Charles Ticker helps families resolve guardianship problems. He can represent either the person for whom guardianship is sought, the proposed guardian or another family member. Representation by an estate lawyer may be required even if the matter does not progress to a Court hearing. In some cases, there is no dispute about capacity but someone still needs to be appointed guardian for the incapable person.
For example, if an incapable parent enters a nursing home and his or her residence needs to be sold, a guardian must be appointed to sell the home if there is no power of attorney. Charles Ticker represents clients in uncontested cases. He can make the necessary Court filings and appearances, and he can help with the preparation of the required management plan.
In certain jurisdictions, mediation of guardianship disputes is mandatory. Charles Ticker is a qualified mediator. He can put his skills to work for you in Toronto, Ottawa and the County of Essex, where mediation is required in guardianship disputes.
Who is Likely to Become the Subject of a Guardianship?
Parties most likely to become the subject of a guardianship are either of limited means or have substantial estates but their relatives are engaged in a bitter rivalry. Instead of using a continuing power of attorney, relatives may argue over who should become guardian and have full control of the estate.
Persons with intellectual disabilities may fall into a grey area where it is unclear if they lack capacity. Their caregivers often resort to guardianship in order to have legal proof of their authority to help these people with their daily activities. A person may wind up with a guardian in one of two ways:
a) If the person’s existing attorney for property or personal care is mismanaging the incapable person’s money or financially abusing them. In this situation a concerned person may apply to the Court to remove the attorney and to be appointed as guardian. Also, where there is a feud between several people who are meant to act jointly as attorneys, a contested guardianship application may arise.
b) The Office of the Public Guardian and Trustee may automatically become the person’s statutory guardian if a capacity assessor determines the person lacks capacity. The capacity assessor may be hired by anyone who is concerned that the vulnerable person is being financially abused or taken advantage of. A close relative may apply to the Office of the Public Guardian and Trustee to replace the person who is taking advantage as a guardian of property.
The Office of the Public Guardian and Trustee may become the guardian of a patient who is in a psychiatric hospital and is receiving care for a mental illness. If that patient is assessed by a doctor as lacking capacity to manage his or her finances, the Office of the Public Guardian and Trustee automatically becomes the statutory guardian. Close relatives can subsequently apply to replace the Office of the Public Guardian and Trustee as the person’s guardian.
There are two kinds of guardianship under the Ontario Substitute Decisions Act:
1. Guardian for property, who makes decisions concerning the incapable person’s property. A guardian for property can be appointed in either of two ways:
A. Statutory guardianship under s. 15 of the Substitute Decisions Act . The Public Guardian and Trustee becomes the person’s statutory guardian if a certificate is issued under the Mental Health Act that a person in a psychiatric facility is incapable of managing property. In addition, under s.16 of the Substitute Decisions Act, a person can request that a capacity assessor perform an assessment of a person that the requesting person has reason to believe is incapable of managing property. If the assessor issues a certificate of incapacity, the Public Guardian and Trustee becomes the person’s statutory guardian of property. Statutory guardianship does not require a Court hearing.
B. Appointment of a guardian of property by the court under s. 22 of the Substitute Decisions Act. This involves the filing of a Notice of Application, affidavit evidence that the person is incapable and a detailed management plan setting out how the proposed guardian plans to manage the incapable person’s property. The evidence filed includes affidavits from lay persons and medical or psychological experts and /or assessments as to the person’s capacity to manage property. This procedure typically requires a Court hearing. A summary disposition procedure (without the necessity of a Court hearing) is also available in certain cases, but the procedural requirements are onerous and many Judges will require a hearing even if the requirements for summary disposition have been met.
2. Guardian for personal care, who is authorized to make decisions about the incapable person’s personal care matters, including decisions concerning health care, nutrition, shelter, clothing, hygiene and /or safety. The procedures for having a guardian for personal care appointed by the Court are similar to the procedures for a Court-appointed guardian of property. In either case, the procedures and steps are complex and it is advisable to retain an estate litigation lawyer experienced in these types of proceedings. Charles Ticker can help you navigate all the necessary proceedings and requirements.
The information on this website is not legal advice. It is for informative purposes only. To schedule an appointment, call Mr. Ticker at: 1-866-677-7746. A lawyer can only be retained after a consultation where all the details of the matter and retainer are discussed.