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How is a guardian chosen?

When a person cannot comprehend the pertinent information or appreciate the potential effects of a financial decision that he or she makes, a guardian of property may be appointed to manage the person's financial affairs. There are multiple scenarios in which such a guardian may be appointed.

The court may appoint a guardian of property of its choosing. However, a person who is paid to provide health services to the mentally incapable person is not usually permitted to be the guardian of property. The court has the power to appoint a specific guardian to replace an existing power of attorney. Any proposed guardian must consent to this appointment. In some situations, a power of attorney may lose a guardianship status if he or she is not acting in the best interest of the individual, such as not managing the person's property properly or taking money for his or her own personal needs.

In some situations, a capacity assessor may appoint the Office of the Public Guardian and Trustee as guardian. These health professionals have received unique training that help them to make mental capacity assessments. A loved one or other individual can ask a capacity assessor to assess an individual's mental capacity if the person consents and there is not an existing power of attorney. If the Office of the Public Guardian and Trustee is serving as the guardian, it also has the power to appoint a person to this role. This is a statutory right and provides this entity with the power to make an appointment without the need for a court order. It may appoint a spouse, relative or other individual to fulfill this role.

Individuals who would like to determine their own guardian or other individual to manage their affairs, such as a trustee, may wish to consult with an estate planning lawyer. He or she may be able to explain the individual's options while he or she is mentally capable to make such a decision.

Source: Ministry of the Attorney General, "Who appoints a guardian of property?", October 30, 2014

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