What is Guardianship?

Guardianship is a court-authorized arrangement that appoints a decision-maker for an adult who is incapable of managing property and/or personal care. In Ontario, guardianship is governed primarily by the Substitute Decisions Act, 1992 (SDA). It is a remedy of last resort, used when less intrusive options (such as powers of attorney, supported decision-making, or statutory guardianship for property via the Office of the Public Guardian and Trustee) are unavailable, inadequate, or inappropriate.

When is Guardianship Appropriate?

  • Absence or invalidity of a Power of Attorney: The person has not executed a valid Continuing Power of Attorney for Property or Power of Attorney for Personal Care, or the document is invalid or impractical to implement.
  • Urgent financial or personal care needs: Bills, taxes, or care costs must be managed; health, safety, or placement decisions are required; assets need protection from dissipation or misuse.
  • Disputes or risk of harm: Family conflict, suspected financial abuse, or neglect makes informal arrangements unsafe or unworkable.
  • Long-term incapacity: Cognitive impairment (e.g., dementia, acquired brain injury, developmental disability) is expected to persist and prevents informed decision-making.
  • Need for court oversight and defined authority: Complex estates, significant medical decisions, or the necessity for clear, enforceable decision-making authority.
  • A child who has turned 18 with disabilities that render them incapable of making decisions about their personal care of property.

Guardianship…over what?

  • Property (financial and legal affairs)
  • Personal Care (health care, nutrition, shelter, clothing, hygiene, safety)
  • Both property and personal care, where appropriate

What Must Be Proven
Applicants must establish, on the evidence, that:

  • The person is incapable with respect to the relevant domain:
    • Property: The individual cannot understand information relevant to making financial decisions or cannot appreciate the reasonably foreseeable consequences of such decisions (SDA criteria).
    • Personal Care: The individual cannot understand or appreciate information relevant to decisions about health care, nutrition, shelter, clothing, hygiene, or safety (SDA criteria).
  • Guardianship is necessary and the least restrictive alternative: Less intrusive measures have been tried or considered and are insufficient.
  • The proposed guardian is suitable: The guardian is willing, able, and appropriate, has no significant conflict of interest, and can act in the person’s best interests and in accordance with statutory duties.
  • The management or guardianship plan is appropriate:
    • Property: A detailed management plan addressing income, expenses, asset preservation, investments, debts, tax compliance, and record-keeping.
    • Personal Care: A comprehensive guardianship plan outlining health care decision-making, living arrangements, safety measures, community supports, and respect for the person’s values and prior capable wishes.

Typical evidence includes: recent capacity assessments (by a qualified capacity assessor for property, or clinical evidence for personal care), medical reports, social work or care-provider notes, financial records, affidavits from family or professionals, and draft plans.

Process Snapshot

  • Preliminary assessment of capacity and alternatives to guardianship.
  • Capacity assessment (for property) by a designated Capacity Assessor, where appropriate.
  • Preparation of the application record to the Superior Court of Justice, including affidavits, notices to required parties (including the Public Guardian and Trustee), and proposed plans.
  • Service on interested persons and response period.
  • Case conference or hearing; potential for contested proceedings if disputes arise.
  • Court order setting out the guardian’s appointment, scope of authority, required security (if any), accounting obligations, and reporting.

Emergency or interim relief may be available where immediate decisions are required and delay would risk serious harm.

How Our Lawyers Can Help

  • Strategy and suitability analysis: Assess whether guardianship is necessary; identify alternatives (powers of attorney, statutory guardianship) and the least restrictive path; scope the application to property, personal care, or both.
  • Evidence development: Coordinate and obtain capacity assessments and medical evidence; marshal financial documentation; prepare affidavits and witness materials aligned with SDA standards.
  • Plan drafting and compliance: Prepare robust management and guardianship plans that meet statutory and court expectations, including investment approaches, care plans, and safeguarding measures.
  • Court advocacy: Prepare and file the application; manage service and notices; represent applicants (or respond to applications), conduct negotiations, and advocate at case conferences and hearings.
  • Risk management and dispute resolution: Address conflicts among family members, allegations of abuse or mismanagement, and requests for security or limited powers; pursue negotiated solutions where appropriate.
  • Ongoing governance: Advise appointed guardians on fiduciary duties, decision-making principles (best interests and prior capable wishes), accounting and reporting, investment standards, and modifications or terminations of guardianship as circumstances change.

If you have questions about guardianship please contact us by emailing Fiona Bryan at fbryan@gagefamilylaw.ca