Please refer to the introductory blog on POA and Guardianship. In the 3rd blog of this series, we discussed how a grantor, either on their own or with a lawyer’s assistance, can use a Power of Attorney (POA) to appoint an attorney to make health care decisions. This 5th blog in the series explains how someone can become a guardian to make healthcare decisions for a “principal” person (most likely, his family member) by going to court and applying for a court order.
The standard procedure for guardianship of a personal healcare is very similar to the guardianship or property. Usually the applicant brings them both.
The only difference between “of property” and “of person” is that:
- “of property” requires a management plan.
- “of person” requires something called a guardianship plan, which is a plan that dictates how the person is going to be cared for.
Standard Procedure
- Notice of Application
- Affidavit of Applicant and potentially a capacity assessment.
- Proposed Guardian’s Consent and a statement under ss.70(2)(a)(b)(c) SDA.
- Indicate whether “full guardianship” under s.59 or “partial guardianship” under s.60 is being requested.
- s.45 lists the categories of decision-making relevant to the incapacity for personal care.
- General Form 3 for guardianship plan is also required.
- Guardianship of the Person Allows for Third-Party Statements:
- One notable difference in applications for guardianship of the person, compared to those for guardianship of property, is that s.71(1) allows for optional third-party statements. A person who knows the alleged incapable individual and has had personal contact with them within the 12-month period before the notice of application was issued may submit a statement in the prescribed form.
- Service of Application
- Response by parties served
- Court Hearing and Judgment:
- The court’s appointment of a guardian for a person must indicate that the individual is incapable and that decisions need to be made on their behalf. This can be either full or partial guardianship.
- The court may appoint joint guardians simultaneously.
- The court may also appoint two or more individuals, each assigned to act as guardian for different, mutually exclusive time periods.
- The court’s appointment can impose a time limit and other conditions.
