Where age or disability prevents a person from making informed decisions about property or personal care, a friend or family member may seek a court appointed guardian under Ontario’s Substitute Decisions Act, 1992 . The Court of Appeal has recently reaffirmed that the appointment decision can involve a very close look at a proposed guardian’s conduct, motivations and plans.

Disagreements over care and the court’s considerations

The case Roelandt v. Roelandt involved a middle-aged woman said to be cognitively unable to manage her property or personal care. Her mother and brother brought competing claims for guardianship, and disagreed strongly on which family and community environment would better provide for the incapable person. There was considerable acrimony between the claimants in the proceedings.

In order to appoint a guardian for a person’s property or personal care, the Court will first determine that the person is actually incapable of managing property, personal care, or both. This required detailed evidence from medical professionals or those who know the person well.

In considering potential court appointed guardians, the application judge must prioritize the incapable person’s interests, while also considering any existing powers of attorney, the person’s current wishes, and the relationship between the incapable person and proposed guardian. A judge is also entitled to consider whether a proposed guardian is prepared to accept their duties under the Act; a court may refuse to appoint a potential guardian who appears selfish or combative, or plans to isolate the incapable person from loved ones.

Weighing evidence from family and other parties

In this case, the court refused to appoint the brother as guardian, and instead appointed the mother and her sister, to allow for an eventual transfer of care. The court noted the incapable person’s preference to reside with her mother. Although the mother and brother were perhaps equally close to the incapable person, the mother had the longer and more intense relationship, and would involve another sibling in the guardianship duties.

The court also relied on evidence suggesting that the mother had always been the primary caregiver, and that the brother had motives and temperament unsuitable to a court appointed guardian. Specifically, he had shown little concern until he discovered that he was not in his mother’s will, at which point he relocated the incapable person and refused to consult their mother or other friends or family regarding her plan of care. The court also noted his lack of initiative on medical and nutritional issues.

Legal advice for potential court appointed guardians or powers of attorney

The Roelandt case shows the courts’ readiness to engage in a close examination of the proposed care, the applicant’s ability to give it, and the applicant’s readiness for the duties of guardianship. Anyone seeking (or disputing) guardianship should examine those duties early on, before any legal dispute arises. The same caution applies to a person making a power of attorney, or expecting to act under one, since many of the same duties will apply.

The Waterloo-based Wills & Estates Group at Duncan, Linton LLP can help if you are dealing with the sensitive and complex legal issues surrounding court appointed guardians. Our skilled lawyers can review your situation, answer any questions you have, and offer guidance about your legal options. We assist with all manner of personal care and estate planning, including estate administration. Contact us online, or call 519-886-3340 to set up a consultation.