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Mental Incompetency Litigation
In Ontario, several stipulate who may make decisions for incapable persons, and the manner in which decisions are to be made respecting the personal care and property of individuals who are incapable of managing their own personal care and/or property. These statutes include the Substitute Decisions Act; the Health Care Consent Act; and the Powers of Attorney Act. An individual may plan for his or her own capacity by executing a power of attorney for personal care and a continuing power of attorney for property in favour of his or her own personal choice of substitute decision maker. The document must be prepared in accordance with the statutory requirements set out in the Substitute Decisions Act.
Where an individual has not made a grant of power of attorney or, if the power of attorney is found deficient or the attorney is unable or unwilling to act, an application may be made to the court for the appointment of a guardian of the person and guardian of property for a mentally incapable person. In certain instances the Public Guardian and Trustee may become the statutory guardian of an incapable person's property and application may be made by an individual to replace the Public Guardian and Trustee as statutory guardian of property.
Applications under the Substitute Decisions Act
Guardianship applications are made to the Superior Court of Justice. Applications are supported by detailed affidavit evidence setting out the reason that the application for guardianship is being sought, including evidence as to the incapacity of the person for whom guardianship is sought and a detailed plan for the care of the individual's person or property. The plan for the care of the incapable person's property is called a "management plan". The plan for making personal care decisions is called the "guardianship plan". Management plans and guardianship plans must be submitted to the Public Guardian and Trustee for her approval. The management and guardianship plan forms part of the guardianship order. Medical evidence, while not required by statute, is a practical necessity on any application to the court for the appointment of a guardian. Capacity assessments of the individual for whom guardianship is sought are frequently obtained from a designated capacity assessor. Where an application is made using the summary proceedings, the assessment of a designated capacity assessor must be included with the application materials.
A court will only appoint a guardian where the court is satisfied that the person is incapable of managing his or her property or making personal care decisions and, as a result of being incapable, the person requires decisions be made on that person's behalf by a person authorized to do so. If there is any alternative to the appointment of a guardian that is less restrictive to that person's decision making rights, the court is directed by legislation to adopt the less restrictive means.
Disputes regarding Powers of Attorney
A person, while capable, may grant and revoke powers of attorney freely. However, the Substitute Decisions Act stipulates what a person giving a power of attorney must comprehend in order to have the requisite capacity to give a power of attorney. At times there are disputes between attorneys under powers of attorney given at different times during the grantor's lifetime as to which power of attorney is valid. Similarly, a person may revoke a power of attorney where he or she does not agree with decisions that are being made in respect of his or her person and property by the named attorney. The attorney in this instance may take the position that the grantor lacks capacity to revoke the power of attorney.
Where there are multiple attorneys named there may be disputes as to the management of property or personal care decisions. Attorneys may be called upon to account for their management of property by the grantor, the Public Guardian and Trustee or by any other person with leave of the court.
