If a person is or becomes incapable of understanding the information required to make a decision regarding his or her property or personal circumstances, or incapable of appreciating the consequences of such a decision, that person is deemed to lack capacity in those regards. In that case, the person’s attorney, as appointed under a Power of Attorney for Property and/or Power of Attorney for Personal Care, will make the required decisions. That substitute decision maker is the next best option to the person making decisions for him or her self because the substitute was, presumably, hand-picked by the incapable person prior to him or her becoming incapable, and on that basis can be expected to make decisions in accordance with the person’s would-be wishes.
If an incapable person requires decisions to be made on his or her behalf but has not appointed an attorney under a Power of Attorney, court appointment of a guardian of property or guardian of the person – depending on the nature of the decision – may be required, in accordance with the Substitute Decisions Act, 1992.Given that the nature of guardianship applications demands that the applicant’s qualifications to act as guardian are necessarily questioned and scrutinized, in order for the court to assess his or her suitability, the procedure can be stressful for the applicant and the family members of the alleged incapable person. The questions and scrutiny are, of course, not intended to offend the applicant, who in many cases is a close relative of the alleged incapable person and who may have been caring for the person for many years, but, rather, are intended to protect the interests of the incapable person, who may not be in a position to properly protect him or her self.
Guardianship applications are a complex process which require strict compliance with the requisite elements, including: (1) gathering and submitting evidence to the court sufficient to enable it to make a finding of incapacity (which evidence generally includes the opinion of an official capacity assessor, who will require an in-person meeting with the alleged incapable person in order to assess his or her capabilities); (2) providing specific information, called “rights advice”, to the alleged incapable person (which advice must be presented to the alleged incapable person, and specifically documented in the application materials, regardless of whether the applicant believes the person understands the advice); and (3) preparing a Management Plan (in the case of guardianship of property applications) and/or a Guardianship Plan (in the case of guardianship of the person applications), which plans outline the intended manner of decision making.There are also other important considerations, including the requirement to post security to act as guardian and the liability to pay the costs of the application.Wherever possible, Powers of Attorney should be prepared and executed in advance of a loss of capacity in order to ensure (or at least increase the chances) of efficient decision-making, where capacity becomes an issue. If execution of Powers of Attorney is not possible, a guardianship application may be required in order to properly protect in incapable person.