Please refer to the introductory blog on POA and Guardianship. In the 2nd and 3rd blogs 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 manage their property or make health care decisions. This 4th blog in the series explains how someone can become a guardian to manage another person’s (the grantor’s) property by going to court and applying for a court order.
Standard Procedure
Under s.25 of the Substitute Decisions Act (SDA), for a “guardian of property” order to be granted, the applicant must provide evidence that the grantor is incapable of managing their property.
Typically, the applicant is the proposed guardian, but this is not always the case. For example, a daughter may believe her mother is incapable of managing her property, so she applies on her mother’s behalf but requests that her brother be appointed.
Notice of the application must be served to the following individuals:
The incapable person
Any existing continuing POA for that person, especially if the applicant intends to set it aside
Any existing guardian of the principal person
The proposed guardian
Additionally, under s.69(6) of the SDA, notice must be served to other family members and relatives by ordinary mail:
The spouse or partner of the person alleged to be incapable
The person’s children who are at least 18 years old (or at least 16 for applications under Part II of the same law)
The person’s parents
The person’s siblings who meet the relevant age requirements
The affidavit must comply with Rule 39 of the Civil Procedure, “Evidence on Motions and Applications”. It must include:
Details of the relationship and contact between the applicant and the incapable person
A family tree of the incapable person
Consent to appointment from other relatives
Details of contact between the applicant and the incapable person, particularly within the past year
Observations and the applicant’s opinion regarding the incapable person’s ability to manage property
Details of interactions between physicians and other health practitioners and the incapable person
The type of security the applicant proposes or whether they seek an order waiving security requirements
A signed statement confirming that the incapable person has been informed of the nature of the application, their right to oppose it, and the manner in which this information was provided, or if it was not possible, an explanation of why
Consent of the proposed guardian to act as such, which is usually included as an exhibit
The completed management plan as an exhibit
A management plan is essentially a budget, detailing how the applicant (proposed attorney) plans to manage the grantor’s finances. The court reviews these management plans in detail as a key element of the application, focusing solely on the best interests of the incapable person.
Although a medical affidavit is not technically required under the SDA, evidence of incapacity is necessary. There are two common ways to provide this:
Capacity Assessment: It is standard practice for qualified assessors to conduct an assessment to establish incapacity, which the judge will scrutinize for clear medical evidence.
Affidavits from Physicians: Under the case Re Avery [1951], some lawyers use affidavits from two physicians to avoid additional scrutiny in court.
At this stage, the notice of application is issued, and an application record with supporting documents is prepared.
Under Rule 16.01(1) of the Civil Procedure, the application must be served either personally or through an approved alternative method.
Ordinary mail is allowed only for certain relatives, such as:
The spouse of the incapable person.
The person’s children and siblings if they are over 18.
Response:
If a respondent (someone served) wishes to participate, they must deliver a notice of appearance. Although the served relatives are not automatically parties to the proceeding, they may choose to become involved at any stage, as allowed by Rule 38.07(3).
The court follows criteria outlined in s.22 and, primarily, ss.24-25 of the SDA:
The judgment must include a specific statement appointing the guardian of property.
Joint guardians may be appointed, or the court can appoint different individuals for separate aspects of the property.
The judgment must also specify the security required, including its extent. The appointment may be for a limited period, and conditions may be imposed.
A guardian of property, if not the PGT, must act according to any established management plan under s.32(10) of the SDA.
Under s.39(1) of the SDA, a guardian can apply to the court for directions regarding property management.
The judgment must address the issue of costs, specifying who will pay legal fees, either the incapable person or the applicant.
Summary Procedure
s.72 and s.77 SDA allow judgment to grant property guardianship without hearing (“over the registrar’s counter”), meaning the applicant does not have to go to court.
The applicant must follow all the steps in the standard procedure except the court hearing
- So instead of the hearing, the applicant relies on:
- statements from at least two medical assessors, or
- one licensed assessor and another person must have met with the alleged incapable person and provide statements in a prescribed form
- the “other person” must have seen the alleged incapable person within one year prior to the issuance of the notice of application
- At least one of these statements must include the opinion that it is necessary to appoint a guardian for property to make decisions on the incapable person’s behalf. ← This is actually an extra step
This “summary” route is not commonly used because:
- It’s called “summary procedure” but it actually requires extra steps
- The judges are concerned about taking away someone’s rights without a hearing
- Notice of Application and Affidavit
- Similar as standard procedure
- The notice of application and the affidavit of the applicant (including exhibits) that forms the core of the application record should be prepared in the same manner as that of the standard procedure
- The primary difference is that an additional capacity assessment is required in the summary procedure
- Basis of opinion in detail must be provided
- The written statements pursuant to s.72 of the SDA by the assessor or a person who is not an assessor include a statement that the person is incapable of managing property.
- The basis of that opinion must be set out in detail in that written statement.
- Similar as standard procedure
- Assessment by two assessors OR one assessor and one non-assessor
- The applicant can alternatively use one non-assessor if they have seen the incapable person within one year of notice of the application being issued, under s.72(1) SDA
- s.1 of SDA dadefines “assessor” which means a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity
- Assessment Conducted
- The assessor(s) must meet with the incapable person to make the assessment
- There must be a statement by assessor that the person is incapable of managing property
- This assessment must have been made during the 6 months before the notice of application issued
- Then the “notice of application” is issued after assessment is done
- This assessment must have been made during the 6 months before the notice of application issued
- Receipt of statement from assessor
- The assessor’s Capacity Assessment (Form A) and non-assessor (General, Form 8) must provide their statements to the applicant.
- The assessor’s Capacity Assessment (Form A) and non-assessor (General, Form 8) must provide their statements to the applicant.
- Preparing application
- The application record should contain the notice of application, the affidavit of the applicant, the statements received from the assessor(s) and non-assessor, as applicable, and the consent of each proposed guardian.
- Service
- Same as in the standard procedure.
- Response to service
- Same as in the standard procedure.
- Submission of material to judge
- Registrar submits the documents to the judge if the applicant certifies the following in writing:
- No notice of appearance has been delivered
- All appropriate documents included
- At least one s.72 statement states that the opinion-maker deems it necessary for decisions to be made by another on the person’s behalf
- The registrar cannot submit the documents to the judge unless all above conditions are satisfied, but practically, the problem is:
- It is difficult for an applicant to know when to certify that “no notice of appearance”, because the Rules simply require an appearance to be filed “forthwith” and the SDA does not impose any time limit.
- Registrar submits the documents to the judge if the applicant certifies the following in writing:
- Disposition by the Court – Three possible dispositions:
- Judgment with no hearing
- Judge requires additional evidence or a hearing
- Judge orders that the application (or any issue) proceed to trial