When people are incapable of making their own decisions, someone needs to make them on their behalf. Often, a guardian is named or appointed to do so, and in Ontario, the Substitute Decisions Act (SDA) is the law that governs those guardianships. There are some situations where it can become difficult to monitor these individuals’ actions and whether or not they are adhering to SDA rules.
Guardians are typically named only in the most extreme cases where no other less-stringent alternative exists. Once a person is deemed incapable of making vital decisions by a doctor or capacity assessor, that person has the right to challenge this before the Consent and Capacity Board. The concern is that, once a guardian has been appointed, the person deemed incapable has very few protections if the guardian begins to abuse his or her power. The SDA guideline might not be followed or could be abused.
Termination of a guardianship
In sections 16 and 17, the SDA states the termination of a guardianship can occur if:
- The court appoints a different guardian.
- The certificate of incapacity is cancelled.
- A continuing power of attorney was established before the individual was declared incapable.
- An assessor’s notice reports that the person has been found capable.
The above shows there are many potential complexities involved in situations where an established guardianship comes into question. Fortunately, there is help and support readily available for these challenging times. Whether circumstances appear to require the need for a guardianship to be established, or if there are potential issues with an existing guardianship, receiving the advice of an Ontario lawyer experienced with these cases could prove invaluable.