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Where an adult is incapable and there is no valid power of attorney, someone must be appointed to act. The court will not appoint a guardian if a less restrictive alternative would do.
Book My 15-Minute Assessment →A guardian will not be appointed where a less restrictive alternative meets the need.
When an adult is mentally incapable of managing their property or personal care and there is no valid continuing power of attorney covering the decisions that need to be made. The court must be satisfied both that the person is incapable and that the applicant is a suitable person to act, and it must not appoint a guardian where a less restrictive alternative would meet the need.
Under the Substitute Decisions Act, authority to make decisions for an incapable adult arises in three ways: a continuing power of attorney, statutory guardianship, and court-appointed guardianship.
A valid power of attorney, made while the grantor was capable, avoids the need for any court process. That is the whole argument for making one.
Where none exists, a court application may be needed. But the Act expressly requires that a guardian not be appointed where a less restrictive alternative would meet the need, so an application has to address why nothing short of guardianship will do.
Two things. First, that the person is incapable, which is generally established by a report from a certified capacity assessor together with sworn evidence. Second, that the applicant is an appropriate person to act.
Suitability is assessed on the applicant's relationship with the person, their ability to manage the responsibilities, any conflict of interest, and whether they will act in the person's interests. A family member with their own financial interest in the assets faces closer scrutiny.
A management plan for property, or a guardianship plan for personal care, must be filed setting out how the applicant proposes to act.
Guardian of property manages finances, assets and legal affairs. This is the more common application and carries extensive accounting obligations.
Guardian of the person makes decisions about health care, housing, nutrition, hygiene and safety.
They are separate appointments and can be held by different people. Capacity is also decision-specific: a person may be capable of some decisions and not others, and an appointment should be no broader than the need.
A guardian of property is a fiduciary with obligations closely resembling those of an attorney: act diligently and honestly for the person's benefit, keep their property separate, keep complete accounts, consult the person and their family where possible, and make expenditures for the person rather than for themselves.
A guardian can be required to pass accounts before the court. The record-keeping obligation is real and begins on day one.
This is worth understanding before applying. Guardianship is a legal office with ongoing accountability, not a permission slip.
Before applying it is worth asking whether the need can be met another way. A limited power of attorney may still be possible if the person retains capacity for that specific act. Statutory guardianship through the Public Guardian and Trustee may already be in place or available. In some cases the practical problem is narrower than it first appears and can be solved without a general appointment.
Where the application is genuinely necessary, addressing these alternatives directly strengthens it, because the court has to consider them anyway.
This page is general information about Ontario and Canadian law published by Lexaltico LLP. It is not legal advice, it does not account for the facts of any particular situation, and reading it does not create a solicitor-client relationship. Rules change, and whether any option is available to you depends on your own circumstances.
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How Lexaltico LLP handles personal information, under PIPEDA and Ontario law.
When you use a form on this site, email us or telephone us, we collect what you choose to send: your name, email address, telephone number and a description of the situation. Nothing on this site requires you to give more than that.
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Short, and written to be read rather than scrolled past.
This site publishes several hundred pages about Ontario law. They are written carefully, they cite statutes and cases by name, and they are reviewed. None of that makes them advice about your matter. Law is applied to facts, and we do not know yours.
The difference is practical rather than technical. A page explaining that spousal support is usually indefinite after a twenty year marriage is accurate as a general statement and may be wrong about you, because of a domestic contract you signed, a period of separation you have forgotten, or an income that is not what a tax return says it is.
Law also changes. Pages carry a review date where one is relevant. A page reviewed last year may not reflect an amendment made since, and a page about a subject currently before an appellate court may be overtaken between your reading it and your acting on it.
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We must confirm in writing that we are prepared to act. Not every matter is one we can take, and saying so early is better than taking a file we cannot properly serve.
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Information sent through a form, or by email, before a retainer is signed is not covered by solicitor client privilege. That is not a policy we chose. It follows from there being no solicitor client relationship for the privilege to attach to.
It can also create a problem for you. If you send us detailed information about a dispute and we are later approached by the other side, what you sent may affect whether we can act for either of you.
So tell us the shape of the problem and leave out the detail: the area of law, roughly when it arose, and whether anything is urgent. That is enough for us to say whether we can help. The documents come after the retainer.
Case results described anywhere on this site are real and are described accurately, and they are specific to their own facts. A settlement at three times the original offer happened because of that employer, that contract and that person’s history. It says nothing about what your matter is worth.
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Calculators on this site produce estimates from the figures you enter. They apply published formulas and they cannot know about the facts that most often change the answer.
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Every limit on what this website tells you, and every thing it does not do, in one place rather than in small print at the bottom of each page.
Four limits, and they matter in this order.
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These pages describe the law of Ontario, and of Alberta only where a page says so expressly. They do not describe the law of any other province, territory or country. Law that looks similar across jurisdictions frequently is not.
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