The need for a court Order appointing an estate trustee for a person’s property can arise in the situation where a person becomes incapable of managing their financial affairs and the person has not made a power of attorney for property. Once it is confirmed by a qualified mediacal praxticioner that the person has lost capacity, the appointment of a guardian becomes necessary.
Who is a Guardian?
Any person appointed by the court to make decisions for the person who has lost capacity is known as guardian. The guardian is responsible for decision making for the incapable person’s personal care and financial property. For example, if a sibling becomes incapable and no power of attorney exists, then a guardian needs to be appointed for taking care of their assets.
In order to avoid the expense and uncertainty involved in obtaining a guardianship order, it is clear that planning for such an event is vital. Your estate plan should have the three documents listed below:
- A will,
- Power of attorney for your property
- Power of attorney for your personal care
All documents for the estate plan should be drafted by an experienced Estate Lawyer to protect your legal interests. Presence of an estate plan keeps the family prepared for all emergencies and prevents unnecessary complications in estate administration. Estate plans should also be regularly updated for life events.
When is Guardianship required?
When a person has a reasonably sized estate and has lost the mental capacity to manage their financial affairs, there is a need to appoint a guardian. If there is no proper power of attorney for property already executed, relatives may engage in rivalry and engage in costly litigation to dispute the management of the estate. They may want to have full control of the estate by becoming the guardian.
In cases, where a person has an intellectual disability, relatives may want to be guardians to confirm that they have authority as the person lacks capacity.
How is a Guardian appointed?
A guardian can be appointed in many ways such as:
- If an attorney for personal care or property is mismanaging assets for an incapable person, then a relative can apply to the court requesting to become the incapable person’s guardian and get rid of the abusive attorney
- If multiple persons are meant to collaborate as attorneys, disagree on decisions, an application may be needed for contest guardianship. This application would be required to resolve the stalemate due to the delays in decision making.
- An incapable person may come under the automatic guardianship of The Office of the Public Guardian and Trustee if they are assessed as lacking capacity by the capacity assessor. Any relative or friend of the incapable person can hire an assessor if they are concerned that an abusive person is taking advantage of the incapable person.
- An incapable person may come under the guardianship of the Office of the Public Guardian and Trustee if assessed by their doctor who is treating them for mental illness in a psychiatric hospital.
What Are the Different Kinds of Guardianship?
Two types of guardianship exist as per the Ontario Substitute Decisions Act:
A. Property Guardian
A property guardian takes care of all decisions regarding the incapable person’s property. Such a guardian can be appointed in two ways:
- Statutory Guardianship
As per Section 15 of the Substitute Decisions Act, an incapable person is deemed to be under the guardianship of The Office of the Public Guardian and Trustee, when they have a certificate considering them incapable under the Mental Health Act. Such a situation arises when the incapable person is being treated in a psychiatric facility and deemed to be incapable of managing their own property.
Any relative or close friend of the incapable person can request for a capacity assessor under Section 16 of the Substitute Decisions Act. Once the assessor issues the certificate of incapacity, The Office of the Public Guardian and Trustee becomes the statutory guardian of the incapable person. Court hearings are not needed for legal guardianship.
- Court Appointment of A Property Guardian
As per section 22 of the Substitute Decisions Act, a proposed guardian is appointed for an incapable person by the court. In this circumstance, a notice of application, a detailed plan for managing the incapable person’s property and suitable evidence certifying the incapacity have to be submitted to the court for a hearing.
The relevant evidence is given by medical, psychological experts who also provide their assessment for the incapable person’s capacity to manage their property.
B. Personal Care Guardian
A personal care guardian takes all decisions for the personal care of an incapable person. Personal care needs includes nutrition, shelter, healthcare, safety, clothing and much more.
The process for a court-appointed guardian for property and personal care is similar. Knowledgeable legal counsel should be taken before applying for a court-appointed guardian.
How We Can Help
At Nanda & Associate Lawyers, our experienced Wills and Estate Lawyers understand your specific circumstances and provide tailored and customized solutions for each of them. If you are contemplating applying for a guardian appointment or want to become a guardian, please call us.
Our Mississauga Wills and Estate Lawyers are available for a consultation. Come and experience our quality legal counsel and personalized care we give to each client. We ensure prompt communication and a professional approach to achieve successful outcomes for you.
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