There has been a lot of talk recently about legal guardianship, mostly due to Britney Spears and the online #freebritney campaign to have her conservatorship reviewed or removed. Although everything celebrity makes the news, including high-profile pre-nuptial agreements and expensive divorce settlements, for most of us, these kinds of important family decisions can be difficult and emotional and are almost always private.
What is legal guardianship?
The legal guardianship we’re discussing here is adult guardianship, not the guardianship of a child, which is entirely different. A major reason why an adult would require guardianship is a permanent or temporary decline in mental capacity, and not having planned for this possibility in advance by naming someone who could make decisions on your behalf, via a Living Will or Power of Attorney, for example. We will get to the importance of planning in advance in a moment.
If you are already incapacitated, it is too late to prepare advance plans and so a legal guardian can be appointed to make decisions for you.
What are the different types of legal guardianship?
Although the laws on legal guardianship vary across Canada, in Ontario, for example, there are two types: guardian of property and guardian of personal care. The former typically deals with financial matters, like paying bills, while a guardian of personal care handles medical and health-related matters, like the decision to place the incapacitated person in long-term care.
There are different names for these roles across the country, but in general, you will find a guardian for “property” and a guardian for “health and other care.” One person can be both. These responsibilities can be paid or unpaid. Both are a big responsibility.
Who can be a legal guardian?
Just about any adult can apply to be a legal guardian. A potential guardian has to demonstrate a close relationship to the person in need and is usually, but not always, a relative. However, you may want to be more involved in deciding who makes life-changing decisions for you.
There may be someone in your life right now who you love and trust; someone you believe will make the right property and/or health decisions for you if needed. A lawyer can help you draft the documents needed to solidify who will make decisions on your behalf should you become incapacitated in the future. Get in touch with us.
And if you are interested in becoming a guardian for someone you know, we can help you understand and prepare for the application process, and help you navigate the many rules and regulations of becoming a guardian for someone vulnerable.
The application process can take a while, so if you do have someone in your family who may soon require help making decisions, it is best to get the process going sooner rather than later.
How do you know if someone needs legal guardianship?
If you suspect someone you care about may be in mental decline and can no longer competently handle their own property or personal matters, contact the government authorities who will make an assessment. All provinces and territories have offices that handle the protection of vulnerable people.
In Ontario, it is the Office of the Public Guardian and Trustee (OPGT); in Manitoba, you would get in touch with the Vulnerable Persons’ Commissioner Office, and so on.
In assessing who may need adult guardianship, the criteria below is roughly what you will find across Canada.
The person…
- is of legal age
- has had an official assessment of their capacity
- has become vulnerable because of a permanent or temporary difficulty
- would likely not respond to less intrusive ways of help
- has no advance plan for their incapacitation (ie: power of attorney)
- needs someone to make personal decisions for them
The takeaway
If you would like more control over your own affairs should you become incapacitated, there are a number of ways to do this. Contact us.
We have lawyers who can advise you based on the laws where you live. If you are worried about someone you love and want more information about guardianship or you would like to apply to become a legal guardian, get in touch with us, as well.
Having a professional on your side in these matters can make the process easier for you and your family.
Articles on the LegalShield.ca website are for informational purposes only and do not constitute legal advice or opinion in any manner. Laws mentioned in the articles vary from province to province. Any links to third-party sites in our articles are for general information purposes only and LegalShield is not affiliated with, nor does it endorse, the content of linked sites. It is always advisable to seek legal counsel—and LegalShield can help.