Overview

When a person is mentally incapable of making certain decisions, they may need a legally authorized substitute decision maker to make choices on their behalf.

The Substitute Decisions Act, 1992 includes rules for some substitute decision makers for mentally incapable adults, including:

Mental incapacity

Mental incapacity is the inability to make a decision. A person is incapable of making a decision if they do not understand the information relevant to the decision or don’t understand the consequences of making or not making it, or both.

Making a power of attorney or other arrangements as part of your life planning allows you to choose who you want to make decisions for you should you become mentally incapable.

Guardianship of property

A guardian of property is a person or trust corporation that makes financial decisions on behalf of a mentally incapable adult. A private guardian of property is appointed by either:

  • the Office of Public Guardian and Trustee (OPGT)
  • the Ontario Superior Court of Justice

A guardian is responsible for managing all property, including real estate and bank accounts, that the incapable person owns. A guardian of property can:

  • open and close bank accounts
  • redirect pensions and other income
  • apply for benefits or supplementary income to which the person is entitled
  • pay bills
  • buy goods and services

A guardian of property cannot:

  • make personal care decisions, including health care decisions
  • make a will on behalf of the mentally incapable person
  • sell property that is the subject of a specific gift in a will, subject to certain exceptions

The difference between power of attorney and guardianship

An attorney is appointed by an individual who is mentally capable, while a private guardian is appointed by the court or the OPGT.

If a guardian is appointed by the court or by the OPGT, the guardian might not be who the mentally incapable person would choose. For most people, having a power of attorney for property or personal care means that you will not need to have a guardian appointed for you.

Apply to become a guardian of property

There are two ways to become a guardian of property:

  1. If the person is now incapable, you can apply to the Ontario Superior Court of Justice to be appointed a guardian by a judge in a court proceeding. Consult with a lawyer if you are considering this action.
  2. If the OPGT already serves as guardian of property for the incapable person, you can apply to replace the OPGT. You can only do this if you are the incapable person’s spouse, partner or relative. The OPGT will review the suitability of the person applying to replace the OPGT.

Whether applying to the court or the OPGT, you will need to complete a Management Plan form that explains how you will manage the person’s property. You must follow the management plan if your application is approved.

The court or the OPGT may impose conditions on the guardianship.

Duties of a guardian of property

Some of the duties of a guardian of property include:

  • managing the incapable person’s property in a way that maximizes their quality of life
  • encouraging the incapable person to participate, as much as they can, in decisions about their property
  • consulting with the incapable person’s family and friends
  • encouraging contact between the incapable person and their family and friends

Learn more about the duties of a guardian of property. It’s a good idea to speak with a lawyer to get specific advice about your duties as a guardian of property.

Guardianship of the person

A guardian of the person is someone appointed by the court to make personal care decisions on behalf of a mentally incapable adult. This usually happens when the person doesn’t have a power of attorney for personal care or if their attorney is not able or willing to fulfill their duties.

A guardian of the person can make personal care decisions for:

  • health care
  • nutrition
  • shelter
  • clothing
  • hygiene
  • safety

A person may be incapable of making all or some personal care decisions. A guardian can only be appointed for the types of decisions that the person has been found incapable of making.

For example, if the person is capable of making decisions about all personal care matters except health care, the guardian will only make health care decisions.

A guardian of the person should:

  • explain their role to the incapable person
  • encourage the incapable person’s independence and their participation in personal care decisions as much as possible
  • consult with family and friends where appropriate
  • choose the least restrictive and intrusive course of action

Learn more about being a guardian of the person.

Apply to become guardian of the person

The only way to become a guardian of the person is by applying to court. Speak to a lawyer if you are considering applying. As part of the court application, you will need to complete a guardianship plan form which explains your plan for the incapable person’s personal care that you must follow.

It is not always necessary to become a guardian of the person to make decisions for some areas of personal care. For example, if someone is incapable of making decisions about health care or moving to a long-term care facility, the Health Care Consent Act authorizes certain people – including spouses, parents and other relatives – to make those decisions without having to apply to court.

Guardianship of minors

If money is payable to a child, a parent or other person can apply to be appointed as guardian of the child's property For example, money may be payable to a child when they receive an inheritance, are entitled to life insurance proceeds, or are awarded funds under a court order or judgment.

A parent with decision making authority is not automatically the guardian of property of his or her minor child's property. Money payable to a child will in most cases be paid into court. However, if a parent or caregiver wishes to receive and manage a child’s funds, they can apply to court to be appointed as the child’s guardian of property.

Learn more about guardianship involving minors.

What to do if you are concerned about someone’s wellbeing

Contact the OPGT if you have concerns about a person who may be incapable and is at serious risk. Severe self-neglect, physical abuse and financial exploitation of incapable people are some of the problems the OPGT can help address.

The OPGT may investigate when:

  • someone may be incapable and at risk of suffering serious financial or personal harm
  • no alternative solution is available

An investigation may result in the OPGT asking the court for authority to make decisions on the person’s behalf on a temporary or permanent basis.

Contact the OPGT by:

Telephone: 416-327-6348
Toll-Free: 1-844-640-3615
TTY: 416-314-2687
Email: OPGT.Investigations@ontario.ca

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