Guardianship

If a person has not taken the step of appointing an attorney for property or personal care to make decisions on their behalf when they become incapable of doing so, it might be necessary for the court to appoint a guardian.

There are two types of guardians: for property and for personal care. Once someone is incapable of managing their property, they are considered incapable for all financial decisions. However, personal care decisions are divided into five categories and an individual may be capable to make some but not all of them. Those categories are shelter, hygiene, clothing, nutrition, and health care.

An assessment of an individual’s capacity to make certain decisions (whichever type of guardianship is applied for), by a capacity assessor duly qualified pursuant to the guidelines of the Ministry of the Attorney General, is required in guardianship proceedings.

Anyone applying to become a guardian over someone else must submit, in their application, a management plan or a care plan, as the case may be. Once appointed, the guardian is expected to follow that plan and if circumstances change, they are expected to notify the Public Guardian and Trustee or the court and submit a revised plan. Guardians of property are liable to the incapable person and must account to the Public Guardian and Trustee on a regular basis.

Guardianship applications are somewhat complex and can be contentious. By appointing a guardian, the court is effectively removing an individual’s inherent decision-making rights. Therefore, it is important to take the proper steps to assure the court that the incapable person’s rights have been observed and that the best possible plan and person for the role is appointed.