Many families approach us as their child is turning 18 years old, thinking they must begin an application for guardianship. The transition to adulthood does not automatically trigger a need for guardianship.
Guardianship is an expensive, time-consuming process that ultimately removes decision-making rights from the person with a disability. Once guardianship is in place, it is very difficult to reverse. While people with disabilities often encounter barriers to decision-making at various points in their lives, there are often solutions that are less restrictive and more accessible than guardianship.
Alternative mechanisms and solutions are dependent on the type of decision facing our loved one with a disability. Learn more by reviewing our “Decision-Making Tree” below, which illustrates the different areas of decision-making under our current legal regime in Ontario.
There are two types of guardians:
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- A guardian of property is someone who has been appointed to make financial decisions on behalf of another adult. Property decisions involve banking, public benefits like ODSP, real estate, investments and so on.
- A guardian of the person is someone who has been appointed to make personal care decisions on behalf of another adult. Personal care decisions involve health care, nutrition, shelter, clothing, hygiene and safety.
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There are two types of guardianship:
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- Court-appointed guardian: A legal guardian may be appointed by the court to make decisions related to property, personal care, or both.
- Statutory guardian: The Public Guardian and Trustee (PGT) may become statutory guardian of property, by virtue of legislation and without a court order. Family members can apply to replace the PGT as statutory guardian.
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How a Court Application for Guardianship Works:
It starts with a formal assessment of your loved one’s capacity to make decisions about their personal care and/or property. Assuming the assessor finds them incapable in one or more domains of decision-making, a court application needs to be filed with the Ontario Superior Court of Justice. You should anticipate costs in the range of $7,000 – $10,000,and a timeline of approximately one year to obtain the court order; that is, if all goes well and your application is not challenged by anyone.
Guardianship – Concerns and Drawbacks:
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- Loss of Rights: the person’s right to make a decision is stripped away.
- Misuse of Powers: Minimal monitoring or oversight of the guardian.
- Barriers to Challenging Guardianship: Usually involves a court application that is costly, complicated and intimidating.
- Once in place, guardianship is difficult to reverse.
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Alternatives to Guardianship:
We encourage families to take an approach centered on educating, supporting and advocating for your loved one’s right to make decisions whenever possible. This includes the use of plain language, visual aids or other interpretive communications to help them exercise their decision-making capacity. Other approaches include enhancing financial literacy, engaging circles of support, or a Microboard. You might also explore whether your loved one can create Powers of Attorney (“POAs”) for themselves, with the help of a legal professional of course! To learn about more about how to, and who can, create POAs, contact PooranLaw.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
