Guardianship Issues
It is often taken as a given when applying for guardianship of an incapable person under the Substitute Decisions Act (SDA) to apply for both property and personal care guardianship.
Property guardianship is dealt with in sections 22 to 42 of the SDA, and personal care guardianship in sections 55 to 68. Procedure on guardianship applications is dealt with in Part V of the SDA.
Guardianship of property is usually necessary, but in many cases guardianship for personal care is not. Often the guardian may already have the power to make health care decisions under the Health Care Consent Act, or the subject of the guardianship application may have capacity to make some or all health care decisions. Personal care decisions can be made in some or all of the following areas:
1. Health care;
2. Shelter;
3. Nutrition;
4. Safety;
5. Clothing; and
6. Hygiene.
The Office of the Public Guardian and Trustee may be satisfied that guardianship of property is warranted, but not personal care. This can lead to situations where a dispute over personal care guardianship can stall the key issue, property guardianship.
Therefore, it is well worth considering at the outset whether personal care guardianship is really necessary.
Thanks for reading.
Sean Graham
