The case involved a guardianship application under s. 22 of the SDA by a man whose wife had suffered brain damage in a car accident.

Although he had consulted with his wife's parents and siblings and they consented to the application, the applicant did not want them to serve the application materials because it would result in the disclosure of financial and other personal information and he and his wife and had always been very private people. The woman's parents and siblings were fine with not reviewing or being served with the application record, and had filed consents to the application stating as much. They had also been provided with a notice of the hearing and chose not to attend.

The Public Guardian and Trustee took the position that s. 69(6) of the Substitute Decisions Act made service on certain family members mandatory. Section 69(6) provides that the notice and accompanying documents shall be served on, amongst others, the allegedly incapable person’s parents and any siblings who have reached age of majority.

The court considered whether the word “shall”, as it appeared in the section, should be interpreted as being mandatory or permissive and, in any event, whether the recipient of the documents can waive service.

Here, the court found that the right to service in order to give adequate notice to the family members belongs to the family members, not to the incapable person. Since it is the right of the family members, then it is open to them to waive their right to service. Any consent to a waiver of this type should be given effect by the court.

Have a great day!

Megan Connolly