How to Have a Guardian of Property Appointed through Court Application

Updated July 2016

This How-To Brief outlines the steps to take when preparing an application to have a guardian of property appointed for an incapable person pursuant to s. 22 of the Substitute Decisions Act, 1992("SDA").

There are also two other processes by which a guardian of property can be appointed. They are referred to as "statutory guardianships" and do not involve a court application. These processes are as follows: 

  • s. 15 of the SDA: Pursuant to s. 54 of the Mental Health Act, a physician is required to examine a patient forthwith on admission to determine if the patient is capable of managing property. If the physician determines the patient is not capable, the physician completes a certificate of incapacity. This form is forwarded to the Office of the Public Guardian and Trustee ("OPGT"). The OPGT is appointed the statutory guardian of property.
  • s. 16 of the SDA: If the person is not a patient in a psychiatric facility, anyone can request that a capacity assessor perform an assessment of the person to determine if he or she is capable of managing property. The person who makes the request of the capacity assessor is the person responsible for negotiating the cost of the assessment and for paying for the assessment (although if the person is found incapable, the OPGT will usually repay the cost of the assessment to the person who requested it, assuming that there are assets available to fund such a payment).

    The capacity assessor will attend on the alleged incapable person and explain who he or she is and that he or she has been asked to perform an assessment of the person's capacity to manage property. An explanation must also be given of the implications of the assessor finding the person incapable (the OPGT will manage the person's property). The person must be advised that he or she has the right to refuse to be assessed (see s. 78 of the SDA).

    If the person does not refuse to be assessed and the capacity assessor finds him or her incapable of managing property, the prescribed forms are forwarded to the OPGT, which becomes that person's statutory guardian of property.

When the OPGT is the statutory guardian of property (in accordance with either s. 15 or s. 16 of the SDA), certain persons may apply to the OPGT to replace it as statutory guardian or property (SDA, s.17).

With respect to capacity assessors, the only context in which they can make a finding that a person is incapable of managing property is pursuant to s. 16 of the SDA. If a capacity assessor has been engaged to provide evidence for a court application for property guardianship, the result will be an opinion as to capacity, one that the court may or may not accept. Capacity assessors may mistakenly state within an assessment prepared for court purposes that the assessor "finds the patient incapable." However, only the court can make such a finding of incapacity. Similarly, affidavits filed in support of guardianship applications often set out that "Dr. Y has found X to be incapable of managing property." This, too, is innaccurate and such wording should be avoided.

This rest of this How-To Brief focuses on court applications for property guardianship.

1Preliminary considerations

(a) Alleged incapable person's age and applicant's age

  • In order to be the subject of a property guardianship proceeding pursuant to the SDA, a person must be at least 18 years of age (SDA, s. 4).
  • If the alleged incapable person is younger than 18, the application must be made pursuant to s. 47 of the Children's Law Reform Act. Such applications must be done on notice to the Children's Lawyer (not the OPGT).
  • In order to act as a guardian of property (or an attorney), a person must be at least 18 years of age (SDA, s. 5).

(b) Least restrictive alternative

  • The court is prohibited from finding a person incapable of managing property and appointing a guardian if there is an alternative course of action that does not require the court to make a finding of incapacity and is less restrictive of the person's decision-making rights than the appointment of a guardian (SDA, s. 22(3)).
  • Other options should be canvassed such as whether the person has capacity to execute a continuing power of attorney for property (SDA, s. 8).
  • If the person is capable of executing a continuing power of attorney for property, the person is also capable of revoking one (SDA, s. 8(2)). Therefore, consideration should be given as to whether a continuing power of attorney for property will provide sufficient protection for the person who requires assistance in managing his or her property. It may not offer sufficient protection if the person does not "attorn" to the authority of the attorney or is susceptible to pressure or influence that may result in the person revoking their continuing power of attorney and appointing someone unsuitable to act. In those cases, a guardianship may be the least restrictive alternative.

(c) Applicant’s suitability

  • The court will want to be satisfied that the applicant is suitable and the management plan is appropriate. (See links to "Appendix A — Management Plan Tips" and "Appendix A-1 — Sample Management Plan" in the Resources section of this How-To Brief.) If the applicant is an undischarged bankrupt, has not had contact with the alleged incapable person for some time, or has little history of handling estates of high value, or if the estate includes complicated business matters, the applicant may have some difficulty convincing the court and the OPGT that he or she is an appropriate person to be appointed the guardian of property.
  • If the estate is large, the applicant may be required to post security. Bond companies look to the personal wealth of the applicant in order to satisfy themselves that if they have to collect on the bond, sufficient personal property of the applicant will be available. If the applicant is otherwise suitable and wishes to be appointed as guardian, consideration should be given to submitting an application jointly with a trust company. Pursuant to s. 25(3) of the SDA, trust companies do not have to post security.
  • An application brought jointly by a private individual and a trust company, or by a trust company alone, requires adherence to all the requirements of the SDA, such as the inclusion of a rights advice statement and the completion of a management plan (see below). The affidavit and the management plan should both include statements that the person swearing/signing the documents has the authority to bind the corporation.
  • If two or more persons are requesting their appointment as the person's guardian of property, the appointment will be joint, unless the order specifies that each of the guardians be appointed for a specified part of the property (s. 24(6) of the SDA).
  • The appointment as guardian is not one to be entered into lightly.  The lawyer of the applicant(s) should conduct a review with the applicant(s) regarding the duties and powers of guardians or property. The duty to act in a fiduciary capacity, to make decisions for the incapable person's benefit, to consult with supportive family members and friends, to encourage participation by the incapable person to the best of his or her ability, to make required expenditures, to keep accounts, to keep the Register of Guardians current, etc., should all be discussed (see s. 32 of the SDA; O. Reg. 100/96, made under the SDA; and O. Reg. 99/96, made under the SDA). Post-discussion, the lawyer should make notes of the explanation of these responsibilities.

(d) Parties

  • The parties to be named as respondents to a guardianship application are set out in s. 69(8) of the SDA, which refers to. 69(1). Generally, parties include the applicant, the alleged incapable person, the OPGT, any attorney for property and/or attorney for personal care. Family members enumerated in s. 69(6) of the SDA may also be added as a party to the proceeding at any time and are entitled to service of the application materials.

(e) Where the application should be brought

  • Neither the SDA nor the Rules of Civil Procedure set out where applications should be commenced. However, due to the nature of the relief sought, it has been the position of some jurisdictions that they will not hear an application brought outside of the jurisdiction in which the alleged incapable person resides. This is to encourage as much ease as possible for the alleged incapable person, whose civil liberties may be curtailed, to come to court to make his or her position known.
  • There have been at least two Ontario Superior Court of Justice decisions that have held, however, that a guardianship application can be brought in any jurisdiction: Robertson v. Robertson, [2008] O.J. 4054, 2008 CarswellOnt 6103 (Sup.Ct.J.) and Kerley v. Gorrill, 2010 ONSC 2456.

(f) Counsel for the alleged incapable person

  • Due to the nature of the relief and sometimes the history of conflict between the applicant and the alleged incapable person (for example, as a result of cognitive decline or mental illness), it may be advisable to request relief that the court order that the OPGT arrange counsel for the alleged incapable person if he or she does not already have counsel of his or her own choosing. The court may also, on its own initiative, make such an order. The appointment of counsel for an alleged incapable person is set out in s. 3 of the SDA.
  • The OPGT is charged with arranging for representation by s.3 counsel. A list of lawyers has been provided to the OPGT by Legal Aid Ontario. In order to be placed on the OPTG's list, lawyers must undergo training with respect to the representation of incapable persons, as mandated by Legal Aid Ontario. Counsel arranged pursuant to s. 3 of the SDA are not counsel for the OPGT; the OPGT has its own in-house counsel.
  • Section 3 of the SDA sets out that, for the purposes of the application, the alleged incapable person is deemed to have capacity to retain and instruct counsel. Responsibility for legal fees is that of the alleged incapable person; the OPGT is not responsible for these legal fees. A legal aid certificate may be obtained.
  • Section 3 of the SDA is to be interpreted broadly: Canada Trust Co. v. York, [2002] O.J. No. 435 (S.C.J) (Q.L). In that case, Croll J. directed the OPGT to arrange counsel for Mr. York although his capacity was not at issue in the proceeding. He had been found incapable previously, and this motion was to request the replacement of his guardian of property. Croll J. held that s. 3 appointments are important because they allow the person to advance their interests before the court.

2Requirements

(a) Affidavit evidence

  • The SDA does not specifically set out that an affidavit is required as part of an application to appoint a guardian of property. However, the proceeding is an application, and therefore evidence must be submitted by way of affidavit (rr. 14 and 38).
  • The affidavit should tell the story of the alleged incapable person. It is helpful to the court and the OPGT to start with an overview of basic facts regarding the alleged incapable person, such as age, birth date, marital status and place of residence. A "family tree" should also be included so that it is easily apparent that all required family members have been served.
  • If the applicant is requesting that no security be required, this should be addressed in the affidavit, with reasons provided as to why the court should be satisfied that dispensing with the bond will not result in risk to the incapable person. See Gryszczuk v. Gryszczuk, [2002] O.J. No. 5944, 2002 CarswellOnt 8635 (Sup.Ct.J.), where the court set out the purpose of security and the court's role in protecting the incapable person.

(b) Evidence of incapacity

  • Evidence must be sufficient to satisfy the court that it can make a finding that the person is incapable of managing property. The test is set out at s. 6 of the SDA.
  • There can be no appointment of a private guardian of property (as opposed to the appointment of the OPGT as statutory guardian) without a finding of incapacity.
  • If proceeding by hearing (as opposed to summary disposition/over-the-counter application), the SDA does not stipulate what type of evidence of incapacity is required. It should be third-party independent evidence, if at all possible, e.g., report/letter or affidavit from a physician or psychologist or a capacity assessment (requested for the purposes of an application pursuant to s. 22 or 72 of the SDA).
  • If it is not possible to obtain third-party independent evidence of incapacity to manage property, anecdotal evidence should be included that is compelling enough that the court can make a finding absent independent evidence (which is quite rare). More often, the anecdotal evidence will be sufficient for a request that the court order that the alleged incapable person submit to a capacity assessment pursuant to s. 79 of the SDA. Even if the relief for a court-ordered capacity assessment has not been pleaded, the court may, of its own initiative, order that the person submit to one.
  • An order for a court-ordered capacity assessment must include specific information, such as the name of the proposed assessor and the place of the assessment. There is a presumption that the assessment be held in the person's residence, if possible.
  • There is also a provision in s. 79 of the SDA that the order may specify that the assessment take place in a health care facility. If such an order is obtained, it is the authority for the person's admission to that health care facility (s. 79 (5)). In practical terms, however, if the person is refusing to be assessed, the health care facility that would be required to hold the person against their will is a psychiatric facility. Permission/consultation with such facility would have to take place prior to any admission. Psychiatric facilities often argue that their ability to involuntary detain a person falls only under the Mental Health Act and they may not recognize an order made pursuant to the SDA.
  • A restraining order may be issued against another person to prevent them from hindering or obstructing an assessment (SDA, s. 80(1)).
  • If, after the order has been made requiring the alleged incapable person to submit to the assessment, the person does not do so, a motion will be required to enforce the assessment order. There are strict procedural requirements set out in s. 81 of the SDA for this relief. Evidence on the motion must include attempts at having the person assessed that have been unsuccessful.
  • If an order to enforce the assessment order is obtained, the assistance of the police is required to enter  premises named in the order and search for and remove the person to be assessed with as much force as is necessary. This must be done between the hours of 9:00 a.m. and 4:00 p.m., unless another time frame is specified in the order. A forced assessment infringes significantly on a person's civil liberties and should be requested and ordered only in the most exceptional of circumstances.

(c) "Rights advice"

  • Every application for guardianship of property must include a statement by the applicant that the alleged incapable person has been informed of the application, its nature and the right to oppose it (SDA, s. 70(1)(c)). This is commonly referred to as "rights advice." Alternatively, if it is not possible to give rights advice, the applicant must include a statement setting out why it was not possible.
  • It is not sufficient for the applicant to simply make a statement that the alleged incapable person was not informed of the application simply because the person is incapable. All persons who are the subjects of property guardianship applications are incapable persons, "not so found." If the person is not incapable, they will not be subject to an order appointing a guardian. Therefore, appropriate rights advice statements would be "I have informed my aunt X of this application, its nature and her right to oppose it. However, due to her advanced cognitive impairment, I am not sure if she understood what I was saying." Presumably, the evidence of incapacity will corroborate that statement.
  • An example of when rights advice could not be given would be, for example, "I am unable to provide my brother X with rights advice about this application because he is currently in a coma following his motor vehicle accident."

(d) Management plan in prescribed form

  • A guardian of property is required to act in accordance with a management plan (with the exception of the OPGT who must act in accordance with its policies) (SDA, s. 32(10)).
  • All private applications for court-appointed guardianship of property must include a management plan, in prescribed form (SDA, s. 70(1)(b)). The prescribed form is set out in O. Reg. 26/95 (Form 2). Copies of management plans are available at the OPGT's website. (See the link to the OPGT's website in the Resources section of this How-To Brief.)
  • The management plan should set out only the property of the alleged incapable person (e.g., not also the property of a spouse or partner or complete family).
  • For further suggested information regarding the management plan, see the link to "Appendix A — Management Plan Tips" and "Appendix A-1 — Sample Management Plan" in the Resources section of this How-To Brief.
  • It is not unusual that, at the time of the application, the applicant may not have all the information regarding the property of the alleged incapable person unless the applicant was previously assisting the incapable person under an informal arrangement of property management. This does not preclude the requirement for the inclusion of a management plan in the application.
  • In such cases, all known information must be included in the management plan, and steps must be set out regarding how unknown information will be obtained. An application may request to file an amended management plan after obtaining further information, which term may be included within the order appointing the guardian. An example of such an order would be the following:
    • THIS COURT ORDERS that Y, as guardian of property of X, shall file an Amended Management Plan with the Public Guardian and Trustee within 60 days of this Order. If the Public Guardian and Trustee is unable or unwilling to approve the Amended Management Plan, Y must bring a motion for approval within 30 days of notice of the Public Guardian and Trustee's refusal. Such motion shall be on notice to the Public Guardian and Trustee.
     
  • Note: If a guardian wishes to manage an incapable person's property in a manner that was not addressed in the management plan approved by the court in the initial application, or where new circumstances arise, it is not necessary to return to court for approval of an amended management plan. Subsection 32(11) of the SDA empowers the OPGT to approve amended management plans. If the OPGT is unable or unwilling to approve the amended management plan, the applicant would then have to bring a motion for approval.

(e) Consent of the proposed guardian

  • Pursuant to s. 70(1)(a) of the SDA, each application must include the consent of the proposed guardian.
  • If the applicant is requesting that the OPGT be appointed as guardian of property, the consent of the OPGT must be obtained prior to the issuance of the application. The applicant's lawyer should contact the Investigations Unit of the OPGT and will be directed to an OPGT lawyer. (See the link to "Appendix B — Contact Information Regarding the OPGT” in the Resources section of this How-To Brief.) Information will be requested by the OPGT regarding the circumstances of the alleged incapable person, his or her property property and information substantiating that there is no one else who is willing, suitable and able to act as guardian of property (including a trust company).
  • Subsection 24(2.1) of the SDA mandates that the court shall not appoint the OPGT as guardian of property of an individual unless the application proposes the OPGT as guardian, the written consent of the OPGT is included in the application and there is no one else available or willing to be appointed.
  • If, after review of the materials provided by the applicant's lawyer, the OPGT agrees to its appointment, its written consent will be provided to the applicant's lawyer for inclusion in the application.

(f) Service of parties and enumerated family members

  • Since an application is an originating process, service on the parties is to be by personal service or an alternative to personal service (see r. 16 of the Rules of Civil Procedure). The alleged incapable person must be served personally. Service on the alleged incapable person is mandatory, and failure to do so could result in any order being set aside: Donohue v. Crozier, [2003] O.J. No. 3298, 2003 CarswellOnt 3238 (C.A.).
  • The application materials must be served on the parties in accordance with r. 38.06(3): a minimum of 10 days’ notice if served in Ontario and a minimum of 20 days’ notice if outside of Ontario.
  • The OPGT will accept service, except in exceptional circumstances, by courier. All applications for guardianship can be served on any of the OPGT offices, the locations of which are included in "Appendix B — Contact Information Regarding the OPGT." (See the link in the Resources section of this How-To Brief.)
  • Enumerated family members must be served by ordinary mail to their last known address pursuant to s. 69(6) of the SDA. The spouse or partner, parents, siblings and children (who have reached the age of 18) must be served, unless their whereabouts are unknown.
  • There have been at least two Superior Court of Ontario decisions dispensing with the mandatory service provisions set out in s. 69(6) of the SDA: Marcoccia v. Marcoccia (3 November 2006), Milton CV-05-0806333-00 (Ont. Sup.Ct.J) [unreported] and Boyd v. Thomson (2006), 28 E.T.R. (3d) 312 (Ont. Sup.Ct.J.). 2

3The application

(a) Address the OPGT’s response

  • The OPGT will typically respond to a guardianship application by letter to the lawyer for the applicant, copying the court. Counsel for the OPGT will not normally appear at the return date of the application.
  • Within Ontario, different courts may deal with guardianship proceedings differently: some judges will review the OPGT's letter during the hearing with the applicant's lawyer to see if all the issues highlighted have been addressed, while other judges do not.
  • It may be useful (and at times necessary) for the applicant to file supplementary materials to address issues identified in the OPGT's letter.

(b) Draft order

  • Due to an increasing number of issued orders received by the OPGT after matters have been adjudicated that do not comply with the provisions of the SDA, the OPGT now requests that draft orders be provided for its review prior to the hearing of the matter. Counsel for the OPGT will review the orders to ensure compliance with the SDA. (See the link to "Appendix C — Sample Draft Order" in the Resources section of this How-To Brief.)

(c) File affidavits of service

(d) Confirm the hearing

4The hearing

(a) General

  • Hearings regarding the appointment of a guardian of property are similar to all other hearings. Reference should be made to any practice directions in the jurisdiction. For example, Toronto has a practice direction, dated July 1, 2014, setting out that applications brought pursuant to the SDA must be placed on the Estates List (as opposed to the general Civil List) and the requirements for scheduling applications for the appointments of guardians. That practice direction is known as the Consolidated Practice Direction Concerning the Estates List in the Toronto Region and can be found within the Ontario Annual Practice.

(b) Costs

  • In accordance with r. 57.01, costs on a proceeding are to be fixed by the court or assessed. It is not sufficient or appropriate to have an order such as "Costs to be paid on a substantial indemnity basis from the property of X." Instead, counsel should be prepared to offer particulars (preferably a draft costs outline) to the presiding judge so that costs can be fixed.
  • The OPGT is authorized to charge a fee, as approved by the Attorney General, to review applications for property guardianship. The fee is currently $250 plus HST of $32.50. An order may be included regarding the OPGT's fee being paid from the property of the incapable person. Since the fee is authorized by statute, however, this is not strictly necessary.
  • If it is necessary for counsel for the OPGT to appear on matters, it reserves the right to ask for increased costs.

5Summary disposition

  • The SDA provides that an application for guardianship of property may proceed by way of summary disposition—that is, over the counter, without the necessity of a hearing. It should be noted that not all jurisdictions or members of the bench allow guardianship matters to proceed in this fashion, citing that the seriousness of the relief requested requires a hearing.
  • Proceeding by way of summary disposition is procedurally onerous. Reference should continually be made to ss. 72 and 78 of the SDA. Highlights include the following:

(a) Evidence of incapacity

  • The application must include two pieces of evidence regarding incapacity to manage property, either
    1. a capacity assessment, done within six months of the issuance of the notice of application, containing certain statements and a statement of a person who is not an assessor under s. 72 of the SDA (Form 8), also containing prescribed statement
      OR
    2. two capacity assessments, including prescribed statements and both performed within six months of the issuance of the notice of application
     
  • If the applicant elects to include one capacity assessment and one statement of a person who is not an assessor, the statement must be from an independent, disinterested person; that is, it should not be made by the applicant or a relative of the applicant (e.g., spouse or child). Ideally, such a statement would be made by a health care professional or, at the very least, someone wholly without connection to the applicant.

(b) Service requirements

  • These remain the same as if the matter was proceeding by hearing.

(c) Certification by applicant

  • The applicant must include for the court a statement certifying that no one has delivered a notice of appearance, that all documents required have been submitted, etc. (SDA, s. 77)
  • If the application is proceeding by way of summary disposition, it is the responsibility of the lawyer for the applicant to ensure that the materials are not delivered to a judge for review prior to the expiry of the notice period (e.g., normally 10 days). This will require collaboration with, or direction from, the court office.
  • The court may grant the relief sought, require additional evidence or order that the matter proceed by way of hearing (SDA, s. 77(3)).

6. Post-hearing or summary relief procedure

  • A copy of the issued and entered order must be sent to the OPGT. The OPGT is required to keep a register of guardians pursuant to O. Reg. 99/96. Information from the order will be entered into the register.
  • There is an ongoing duty for guardians to provide the OPGT with current information for the register: See O. Reg. 99/96, s. 4.

6Post-hearing or summary relief procedure

  • A copy of the issued and entered order must be sent to the OPGT. The OPGT is required to keep a register of guardians pursuant to O. Reg. 99/96. Information from the order will be entered into the register.
  • There is an ongoing duty for guardians to provide the OPGT with current information for the register: See O. Reg. 99/96, s. 4.

Glossary

Capacity assessor: A person who is a member of a regulated health profession, who has completed special training by the Attorney General to perform capacity assessments and met the requirements set out in the regulation. Reference should be made to O. Reg. 460/05.

Contact the Capacity Assessment Office for any questions regarding capacity assessors. (See the link to "The Office of the Public Guardian and Trustee" in the Resources section of this How-To Brief.)

Resources

Statute and Rules

Cases

  • Robertson v. Robertson, [2008] O.J. 4054, 2008 CarswellOnt 6103 (S.C.J.)
  • Kerley v. Gorrill, 2010 ONSC 2456
  • Canada Trust Co. v. York, [2002] O.J. No. 435 (S.C.J) (Q.L)
  • Gryszczuk v. Gryszczuk, [2002] O.J. No. 5944, 2002 CarswellOnt 8635 (S.C.J.)
  • Donohue v. Crozier, [2003] O.J. No. 3298, 2003 CarswellOnt 3238 (C.A.)
  • Marcoccia v. Marcoccia (3 November 2006), Milton CV-05-0806333-00 (Ont. S.C.J) [unreported]
  • Boyd v. Thomson (2006), 28 E.T.R. (3d) 312 (Ont. S.C.J.)