What is guardianship?
Sometimes a person may not have the necessary mental capability to make certain decisions. The person may not have the ability to understand information that is relevant to the decision, or the consequences of making the decision. In that case, if a decision needs to be made — like selling a home, cashing in an investment, or moving into a care facility — someone else will have to make the decision.
In Nova Scotia a court can appoint someone to make decisions for someone else. This is only if the person does not have the ability to make decisions, and needs someone else to make those decisions.
The person who is appointed to make decisions for someone else is called a guardian.
The guardian has authority to make decisions for the person who is incapable. The guardian is a helper, in a position of trust. The guardian must use their authority only in the best interests of the incapable person.
The guardian has authority to make decisions about the incapable person's property and finances. The guardian also has authority to make decisions about the incapable person's health and personal care. This includes decisions about where the incapable person will live, what sort of medical treatments will be given to the person, what happens to the person's income, how the person's property will be dealt with, and so forth.
When is guardianship necessary?
Guardianship may be necessary if a person does not have the mental ability to make certain decisions, but those decisions have to be made. For the court to order guardianship, the person must be incapable of taking care of themselves.
Guardianship transfers a person's ability to make legally binding decisions to someone else. That is a drastic step that removes a person's ability to make decisions for themselves. For that reason it is important to consider other options that are less drastic. Even if a person is unable to understand some information or the consequences of some decisions, that does not mean that a guardianship order will be necessary.
For example, a person may be able to make some types of decisions, even if they are unable to make others. A person may be able to make decisions if they have help with understanding relevant information, or help with expressing the decision. A person may be better able to make decisions at some times, but not others.
What if the person has made an enduring power of attorney and a personal directive?
In that case a guardianship order is not usually needed. An enduring power of attorney appoints a person to make decisions regarding property and finances for someone else, even if the person becomes incapable. A personal directive does the same thing for personal and healthcare decisions. If a person has made both, then there will be someone else to make decisions for the person in those areas. A guardianship order will usually not be required.
Guardianship may be required, however, if the person appointed by a power of attorney or a personal directive is unable to act, or if the power of attorney or personal directive is limited to only some kinds of decisions.
For many people, enduring powers of attorney and personal directives are preferable to guardianship, because they do not require an application to court, which can be expensive, time-consuming, and public. As well, they allow a person to choose who will be the decision-maker. In a guardianship application, the court decides who will be appointed as the guardian.
How does someone get appointed to be guardian?
A Nova Scotia law, called the Incompetent Persons Act, describes the process for being appointed as guardian. A person who wants to be appointed as guardian for someone else must make an application to court. The court will require proof that the person is unable to make certain decisions for themselves, and that they need a guardian. Usually this requires the evidence of a medical practitioner who has examined the person.
The person must be told where and when the application will be heard by the court.
The proposed guardian usually has to get a bond. A bond is like an insurance policy, so that if the guardian fails to perform their duties any loss is covered.
If the evidence shown in the court proves that the person does need a guardian and if the proposed guardian is suitable and has a bond, then the court usually grants the order appointing the guardian.
What is the role of a guardian?
The guardian is responsible for making sure that the incapable person's needs are looked after and that their property and finances are managed effectively. This may involve making decisions about the incapable person's lifestyle (living arrangements, social activities, educational opportunities), personal care (grooming, clothing), healthcare (treatment options, consent to medical procedures), finances (paying bills, receiving income, managing bank accounts), and property (maintaining the house, selling a car, dealing with investments).
What duties does a guardian have?
The guardian is in a position of trust. This comes with legal responsibilities. Most importantly the guardian must always make decisions in the best interests of the incapable person, and only in that person's interests. The guardian should encourage the person to be involved in decision making to the best of their abilities, and encourage independence when possible. The guardian cannot make decisions to benefit themselves, or a third party.
A guardian has a number of other legal duties. A guardian must manage property and finances with care and skill. A guardian must keep the incapable person's property separate from the guardian's, including keeping money in separate bank accounts. A guardian should keep complete records of every action taken. A guardian must report to the court on the guardian's activities and decisions.
Why is the government considering changes to guardianship law in Nova Scotia?
The current law can be improved in a number of ways. It could better protect the rights of persons who need help from a guardian. It could better help guardians understand their responsibilities. Among other things, the law should:
- Recognize that an adult may have capacity in some areas but not in others. Currently guardianship orders cannot be tailored to specific areas of decision-making capacity and incapacity.
- Require a guardianship order to be regularly reviewed, like once every 12 months. Right now, guardianship orders remain in place until the person's death unless someone goes to court with proof that the person has regained capability.
- Recognize the right of adults to make decisions and to have input into decisions that affect them.
- Require guardians and courts to pay attention to the wishes of the incapable person. If the person's wishes are not known, guardians and courts should pay attention to the values and beliefs of the person, and the person's best interests.
Where can I get more information about guardianship?
For general information about guardianship, consult the Legal Information Society of Nova Scotia: www.legalinfo.org.
For information about a specific guardianship matter, consult a lawyer who practices estate law, disability law, or elder law.