What Is a Guardianship Application?

Where a loved-one or close relative becomes incapacitated and they do not have a Power of Attorney for Property, the Public Guardian and Trustee is de-facto appointed to manage the individual’s assets.

Should you wish to remove the Public Guardian and Trustee from managing the incapacitated individual’s property, an Application must be made to the Superior Court of Ontario appointing one or multiple individuals to act as Statutory Guardians of the incapacitated individual.

Statutory Guardian of Property and Statutory Guardian of Personal Care

In the same fashion that there exists two types of Powers of Attorney, those for property and those for personal care, there are two different positions of appointment: Statutory Guardian of Property and Statutory Guardian of Personal Care.

The Application to appoint oneself as the Statutory Guardian of an individual shall need to be accompanied with the following evidence:

  1. Evidence that the individual is incapacitated, typically a physician’s letter or formal assessment;
  2. Affidavit evidence explaining why you are a suitable candidate to step into the role as Statutory Guardian;
  3. If there are family members, consent should be obtained from all close relatives approving of your appointment as the statutory guardian;
  4. Management Plan – a form detailing the assets owned by the incapacitated individual and your plan for managing them;
  5. Guardianship Plan – a form detailing the current and proposed care the incapacitated individual is currently receiving; and
  6. All other evidence that may support your appointment as Statutory Guardian.

The Role of the Public Guardian and Trustee

Once the evidence is prepared, it needs to be served on the Public Guardian and Trustee, who has the right to object to your appointment. A Court date shall be set and an appearance in front of a judge is required to obtain a Court Order confirming your appointment as Statutory Guardian.

Where the Public Guardian and Trustee objects, they will make an appearance and state their case as to why they should continue to remain managing the individuals’ property.

Where the Public Guardian and Trustee does not object to the Applicant’s appointment, they will likely forgo appearing before the judge and in some cases, may even provide their approval for the proposed Applicant.

In some situations, the Court may require that the Applicant obtain a Security Bond, for the value of the incapacitated individuals assets, so as to dissuade the Statutory Guardian from absconding with the assets.

Application Process Involvement and Judgement

The process for obtaining an Order appointing an individual as a Statutory Guardian is both time consuming and emotionally taxing. Where the Application material is detailed, precise and convincing, the likelihood for obtaining a favorable judgement, increases.