By Barrie Hayes, Partner
As our society grows older the increasing incidence of dementia and Alzheimer’s have led to a corresponding increase in the court appointments of guardians of property and guardians of the person.
In a situation where a person, because of the onset of mental illness, dementia or otherwise becomes incapable of managing his or her property or of making decisions involving his or her health care unless the person, while he or she was capable, has executed a continuing power of attorney for property or a power of attorney for personal care, the incapable person will require a court-appointed guardian of property to manage his or her financial affairs and a guardian of person to make decisions of personal care on behalf of the incapable person.
Anyone can make application for appointment as a guardian of property and guardian of the person although the incapable person’s spouse and family are the most frequent applicants. More than one person can apply for these guardianship appointments.
The presumption laws that a person is presumed capable to manage his or her affairs or to make care decisions unless evidence satisfies the court on the balance of probabilities that the person is incapable. An affidavit from the incompetent person’s physician or the report of a certified capacity assessor are commonly accepted as evidence confirming incapacity.
The person applying for appointment as guardian of property will be required to file an affidavit which among other issues ;addresses the factual background of the incapable person, whether the applicant is requesting a judgement dispensing with the requirement that the applicant post a security bond and confirming that the incapable person has been informed of the nature of the application.
The applicant is also required to include as an exhibit a completed management plan which details the incapable persons assets, describes the care arrangement to be made for the benefit of the incapable person , the cost of such care arrangement and details the investment plan the applicant has made for the benefit of the incapable person.
The appointment of guardianship of property provides the guardian with the authority to do anything in respect of property that the incapable person could of done, if capable, except make a will. The guardian of property is a fiduciary whose powers and duties are to be exercised and performed diligently with honesty and integrity and in good faith for the incapable person’s benefit.
The guardian for property is required to keep careful accounts in administering the incapable person’s financial affairs and to have such accounts reviewed and approved by the court from time to time.
The application for the appointment of a guardian of the person is similar in form to the guardianship of property but it’s focus is on whether the incapable person can make appropriate decisions for his or her care. The order appointing the guardian of the person will define the scope of the decisions for personal care of the incapable person to be made by the guardian of the person.
The guardian of the person is required to execute his or her duties diligently and a good faith for the best interest of the incapable person.
In situations where a person becomes incapable and no person is prepared to be appointed guardian of property or personal care for the incapable person the Office of the Public Trustee and Guardian will become the statutory guardian for the incapable person.