Adults with Disabilities: Decision-Making Rights & Support

PooranLaw
December 20th, 2024

Guardianship is an expensive, time-consuming process that ultimately removes decision-making rights from the person with a disability. Once guardianship is in place, it is very difficult to reverse.

While people with disabilities often encounter barriers to decision-making at various points in their lives, there are often solutions that are less restrictive and more accessible than guardianship. Alternative solutions are dependent on the type of decision facing our loved one with a disability.  

There are Two Types of Guardians: 

1. A guardian of property is someone who has been appointed to make financial decisions on behalf of another adult. Property decisions involve banking, public benefits like ODSP, real estate, investments and so on.
2. A guardian of the person is someone who has been appointed to make personal care decisions on behalf of another adult. Personal care decisions involve health care, nutrition, shelter, clothing, hygiene and safety.

There are Two Types of Guardianship:

1. Statutory guardian: The Public Guardian and Trustee (PGT) may become statutory guardian of property, by virtue of legislation and without a court order. Family members can apply to replace the PGT as statutory guardian.
2. Court-appointed guardian: A legal guardian may be appointed by the court to make decisions related to property, personal care, or both.

How a Court Application for Guardianship Works:

It starts with a formal assessment of your loved one’s capacity to make decisions about their personal care and/or property. Assuming the assessor finds them incapable in one or more domains of decision-making, a court application needs to be filed with the Ontario Superior Court of Justice. You should anticipate costs in the range of $7,000 – $10,000,and a timeline of approximately one year to obtain the court order; that is, if all goes well and your application is not challenged by anyone.

Guardianship Concerns and Drawbacks:

• Loss of Rights: the person’s right to make a decision is stripped away.
• Misuse of Powers: Minimal monitoring or oversight of the guardian.
• Barriers to Challenging Guardianship: Usually involves a court application that is costly, complicated and intimidating.

We encourage families to take an approach centered on educating, supporting and advocating for your loved one’s right to make decisions whenever possible. Once in place, guardianship is difficult to reverse.