Duties and Powers of a Guardian of the Person in Ontario

 In wills and estates

Note: Many of the comments below about guardians of the person also apply to attorneys under a power of attorney for care. In Ontario, substitute-decision making is governed by the Substitute Decisions Act.[i]
 

Substitute-Decision Makers

There are many people who are not only incapable personal care[ii] but also incapable of executing a power of attorney for care. These incapable persons need substitute-decision makers appointed for them, such as friends, family members, or the Office of the Public Guardian and Trustee (OPGT). When appointed by an Ontario court or the OPGT, these substitute-decision makers for personal care are called “guardians of the person.” A “guardian of the person” is someone appointed by the Ontario court or the OPGT to make personal care decisions for those mentally incapable of doing so.[iii]
 
If you are guardian of the person, you must understand all the relevant information, appreciate the consequences of your decisions, and make decisions in keeping with the principles of the Substitute Decisions Act. You will be a fiduciary with many powers and duties, discussed below.
 

Overview

In Ontario, the role of guardian of the person requires you to act as a substitute decision maker for personal care matters. When necessary you must act and make decisions about housing, food, safety, security, clothing, personal hygiene, healthcare, and treatment options.
 

Appointment

To become a guardian of the person in Ontario, you must be appointed by the court,[iv] and a court will not appoint you guardian if there is an alternative that is less restrictive of the incapable person’s decision-making rights that does not require the court to declare him or her incapable.[v] You won’t be appointed a guardian of the person unless that person is found to incapable of making personal care decisions and, consequently, needs decisions to be made on his or her behalf by you.[vi]
 

Duties of the Guardian of the Person

If you are appointed guardian of the person, you may do all the following:

  • make decisions about the person’s health care, nutrition, and hygiene;
  • make decisions on behalf of the person to which the Health Care Consent Act, 1996 applies;
  • be the person’s litigation guardian, except litigation that relates to the person’s property or to your status or powers;
  • exercise custodial power over the person under guardianship, determine that person’s living arrangements, and provide for his or her shelter and safety;
  • settle claims and commence and settle proceedings on the person’s behalf, except claims and proceedings that relate to the person’s property or to your status or powers;
  • have access to personal information, including health information and records, to which the person would be entitled to have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person’s property or to your status or powers;
  • make decisions about the person’s employment, education, training, clothing, and recreation and about any social services provided to the person; and
  • exercise the other powers and perform the other duties that are specified in the order appointing you.[vii]

 

Guardian of the Person’s Decision Making

As a guardian of the person, you must exercise your duties and powers diligently and in good faith.[viii] When making a decision on the incapable person’s behalf, that decision must be made solely for the incapable person’s benefit. In deciding what the person’s best interests are, you must consider the person’s current wishes, if ascertainable and the values and beliefs that you know the person held when capable and believe the person would still act on if capable. In addition, you are to consider the following:

  • Whether your decision is likely to improve the quality of the person’s life; prevent the quality of the person’s life from deteriorating; or reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
  • Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.[ix]

Although you have the power to make decisions, you must also consult and be mindful of the incapable person. As such, you must do the following:

  • encourage the person to participate, to the best of his or her abilities, in your decisions on his or her behalf;[x]
  • facilitate contact between incapable person and relatives and friends;[xi]
  • consult with relatives and friends;[xii]
  • facilitate the incapable person’s independence;[xiii] and
  • make decisions that are the least restrictive and intrusive to the incapable person.[xiv]

Guardian of the Person Record Keeping

As a guardian of the person, you do not have to keep the same kind of financial records as a guardian of property, but you must maintain comprehensive records of the following:

  • medical reports or documents;
  • lists of all decisions made regarding safety, shelter, and health care; and
  • names, dates, reasons, consultations, and details, including notes of the wishes of the incapable person.

Compensation for the Guardian of the Person

Unlike a guardian of property, a guardian of the person in Ontario is not automatically entitled to compensation. A court may award you compensation if it is reasonable to do so and there is an evidentiary foundation to support the claim for compensation.
 

Questions

If you have any questions or comments or want to know how to apply to be someone’s guardian, please contact us.

[i] Substitute Decisions Act,1992, S.O. 1992, c. 30.
[ii] A person is incapable of personal care if the person is not able to understand information relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. See: Substitute Decisions Act, supra note 1, s 45.
[iii] Ibid. s 55(1).
[iv] Ibid. s 55(1).
[v] Ibid. s 55(2).
[vi] Ibid. s 58(1).
[vii] Ibid. s 59(2).
[viii] Ibid. s 66(1).
[ix] Ibid. s 66(4).
[x] Ibid. s 66(5).
[xi] Ibid. s 66(6).
[xii] Ibid. s 66(7).
[xiii] Ibid. s 66(8).
[xiv] Ibid. s 66(9).

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