Substitute Decisions Act, 1992

General

1 (1) In this Act, “accessible format” may include, but is not limited to, large print, recorded audio and electronic formats, braille and other formats usable by persons with disabilities, within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005; (“format accessible”) “assessor” means a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity; (“évaluateur”) “capable” means mentally capable, and “capacity” has a corresponding meaning; (“capable”, “capacité”) “controlled-access residence” means premises, other than a facility, where one or more persons live and that are operated for remuneration by a person who controls access to the premises; (“résidence à accès contrôlé”) “court” means the Superior Court of Justice; (“tribunal”) “dependant” means a person to whom another has an obligation to provide sup…

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract. 1992, c. 30, s. 2 (1). Same (2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. 1992, c. 30, s. 2 (2). Exception (3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. 1992, c. 30, s. 2 (3). Onus of proof, contracts and gifts (4) In a proceeding in respect of a contract entered into or a gift made by a person while his or her property is under guardianship, or within one year before the creation of the guardianship, the onus of proof that the other person who entered into th…

3 (1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act, (a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and (b) the person shall be deemed to have capacity to retain and instruct counsel. 1992, c. 30, s. 3 (1). Responsibility for legal fees (2) If legal representation is provided for a person in accordance with clause (1) (a) and the person is not eligible to receive comparable legal aid services under the Legal Aid Services Act, 2020 in connection with the proceeding, the person is responsible for the legal fees. 1992, c. 30, s. 3 (2); 1998, c. 26, s. 108; 2020, c. 11, Sched. 15, s. 59. Same (3) Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees a…

3.1 (1) In this section, “audio-visual communication technology” means any electronic method of communication which allows participants to see, hear and communicate with one another in real time. 2021, c. 4, Sched. 8, s. 1 (2). Permitted use of audio-visual communication technology (2) A requirement under this Act that a power of attorney be executed in the presence of witnesses may be satisfied through the use of audio-visual communication technology, if, (a) at least one person who is acting as a witness is a licensee within the meaning of the Law Society Act at the time; (b) the signatures required by this Act are contemporaneously made; and (c) the prescribed requirements, if any, are met. 2021, c. 4, Sched. 8, s. 1 (2). Counterpart signing (3) For the purposes of clause (2) (b), the signatures required by this Act may, subject to any prescribed requirements, be made by signing compl…

PART I PROPERTY

General

4 This Part applies to decisions on behalf of persons who are at least eighteen years old. 1992, c. 30, s. 4.

5 To exercise a power of decision under this Part on behalf of another person, a person must be at least eighteen years old. 1992, c. 30, s. 5.

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.

Continuing Powers of Attorney for Property

7 (1) A power of attorney for property is a continuing power of attorney if, (a) it states that it is a continuing power of attorney; or (b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property. 1996, c. 2, s. 4 (1). Note: Subsection 7 (1), as re-enacted by the Statutes of Ontario, 1996, chapter 2, subsection 4 (1), applies to powers of attorney given before or after March 29, 1996. See: 1996, c. 2, s. 4 (5). Same (2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will. 1992, c. 30, s. 7 (2). P.G.T. may be attorney (3) The continuing power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is ex…

8 (1) A person is capable of giving a continuing power of attorney if he or she, (a) knows what kind of property he or she has and its approximate value; (b) is aware of obligations owed to his or her dependants; (c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney; (d) knows that the attorney must account for his or her dealings with the person’s property; (e) knows that he or she may, if capable, revoke the continuing power of attorney; (f) appreciates that unless the attorney manages the property prudently its value may decline; and (g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30, s. 8 (1). Capacity to revoke (2) A person is capable of revoking …

9 (1) A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property. 1992, c. 30, s. 9 (1). Same (2) The continuing power of attorney remains valid even if, after executing it, the grantor becomes incapable of giving a continuing power of attorney. 1992, c. 30, s. 9 (2). Determining incapacity (3) If the continuing power of attorney provides that it comes into effect when the grantor becomes incapable of managing property but does not provide a method for determining whether that situation has arisen, the power of attorney comes into effect when, (a) the attorney is notified in the prescribed form by an assessor that the assessor has performed an assessment of the grantor’s capacity and has found that the grantor is incapable of managing property; or (b) the attorney is notified that a cer…

10 (1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. 1996, c. 2, s. 6 (1). Persons who shall not be witnesses (2) The following persons shall not be witnesses: 1. The attorney or the attorney’s spouse or partner. 2. The grantor’s spouse or partner. 3. A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child. 4. A person whose property is under guardianship or who has a guardian of the person. 5. A person who is less than eighteen years old. 1992, c. 30, s. 10 (2). (3) Repealed: 1996, c. 2, s. 6 (2). Non-compliance (4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is …

11 (1) An attorney under a continuing power of attorney may resign but, if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to, (a) the grantor; (b) any other attorneys under the power of attorney; (c) the person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and (d) unless the power of attorney provides otherwise, the grantor’s spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if, (i) the attorney is of the opinion that the grantor is incapable of managing property, and (ii) the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act. 1992, c. 30, s. 11; 1996, c. 2, s. 7 (…

12 (1) A continuing power of attorney is terminated, (a) when the attorney dies, becomes incapable of managing property or resigns, unless, (i) another attorney is authorized to act under subsection 7 (5), or (ii) the power of attorney provides for the substitution of another person and that person is able and willing to act; (b) Repealed: 1996, c. 2, s. 8 (2). (c) when the court appoints a guardian of property for the grantor under section 22; (d) when the grantor executes a new continuing power of attorney, unless the grantor provides that there shall be multiple continuing powers of attorney; (e) when the power of attorney is revoked; (f) when the grantor dies. 1992, c. 30, s. 12 (1); 1996, c. 2, s. 8. Execution of revocation (2) The revocation shall be in writing and shall be executed in the same way as a continuing power of attorney. 1992, c. 30, s. 12 (2). Section Amendments with d…

13 (1) If a continuing power of attorney is terminated or becomes invalid, any subsequent exercise of the power by the attorney is nevertheless valid as between the grantor or the grantor’s estate and any person, including the attorney, who acted in good faith and without knowledge of the termination or invalidity. 1992, c. 30, s. 13 (1). Same, improper execution (2) If a continuing power of attorney is ineffective because a person listed in subsection 10 (2) witnessed its execution, subsection (1) applies, with necessary modifications. 1992, c. 30, s. 13 (2).

14 Despite the repeal of section 5 of the Powers of Attorney Act, by subsection 24 (3) of the Consent and Capacity Statute Law Amendment Act, 1992, a power of attorney that is executed on or before the day this Act comes into force or within six months after that day shall be deemed to be a continuing power of attorney for the purposes of this Act if, (a) it contains a provision expressly stating that it may be exercised during any subsequent legal incapacity of the grantor, as described in section 5 of the Powers of Attorney Act; and (b) it is executed in accordance with the Powers of Attorney Act and is otherwise valid. 1992, c. 30, s. 14.

Statutory Guardians of Property

15 If a certificate is issued under the Mental Health Act certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. 1992, c. 30, s. 15; 1996, c. 2, s. 9. Section Amendments with date in force (d/m/y) 1992, c. 32, s. 20 (61, 62) - 03/04/1995; 1996, c. 2, s. 9 - 29/03/1996

16 (1) A person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section. 1996, c. 2, s. 10. Form of request (2) No assessment shall be performed unless the request is in the prescribed form and, if the request is made in respect of another person, the request states that, (a) the person requesting the assessment has reason to believe that the other person may be incapable of managing property; (b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the existence of any attorney under a continuing power of attorney that gives the attorney authority over all of the other person’s property; and (c) the person requesting the assessment has made reasonable inquirie…

16.1 (1) A statutory guardianship of property is terminated if, (a) the incapable person gave a continuing power of attorney before the certificate of incapacity was issued; (b) the power of attorney gives the attorney authority over all of the incapable person’s property; (c) the Public Guardian and Trustee receives, (i) the original power of attorney, or a copy of it that is authenticated in a manner satisfactory to the Public Guardian and Trustee, (ii) a written undertaking signed by the attorney to act in accordance with the power of attorney, and (iii) proof satisfactory to the Public Guardian and Trustee of the identity of the person named as the attorney in the power of attorney; and (d) if someone has replaced the Public Guardian and Trustee as the statutory guardian under section 17, the statutory guardian receives, (i) a copy of the power of attorney that is authenticated in a …

17 (1) Any of the following persons may apply to the Public Guardian and Trustee to replace the Public Guardian and Trustee as an incapable person’s statutory guardian of property: 1. The incapable person’s spouse or partner. 2. A relative of the incapable person. 3. The incapable person’s attorney under a continuing power of attorney, if the power of attorney was made before the certificate of incapacity was issued and does not give the attorney authority over all of the incapable person’s property. 4. A trust corporation within the meaning of the Loan and Trust Corporations Act, if the incapable person has a spouse or partner who consents in writing to the application. 1996, c. 2, s. 11; 2006, c. 19, Sched. B, s. 22 (1); 2016, c. 23, s. 70 (2). Form of application (2) The application shall be in the prescribed form. 1996, c. 2, s. 11. Management plan (3) The application shall be accomp…

18 (1) If the Public Guardian and Trustee refuses to issue a certificate for a statutory guardian of property under section 17, he or she shall give the applicant reasons, in writing, for the refusal. 1992, c. 30, s. 18 (1); 1996, c. 2, s. 12 (1, 2). Dispute, application to court (2) If the applicant disputes the refusal by giving the Public Guardian and Trustee notice in writing, the Public Guardian and Trustee shall apply to the court to decide the matter. 1992, c. 30, s. 18 (2); 1996, c. 2, s. 12 (3). Review by court (3) The court shall decide whether the applicant should, in the circumstances, replace the Public Guardian and Trustee. 1992, c. 30, s. 18 (3); 1996, c. 2, s. 12 (4). Criteria (4) The court shall take into consideration the incapable person’s current wishes, if they can be ascertained, and the closeness of the applicant’s relationship to the person. 1996, c. 2, s. 12 (5).…

19 (1) If a statutory guardian of property dies, becomes incapable of managing property or gives notice to the Public Guardian and Trustee of his or her resignation, the Public Guardian and Trustee may elect to become the incapable person’s statutory guardian until another person is appointed as guardian of property under section 17 or 22. 1996, c. 2, s. 13. Delivery of accounts, etc. (2) If a statutory guardian of property gives notice to the Public Guardian and Trustee of his or her resignation, the Public Guardian and Trustee may require the guardian to provide the Public Guardian and Trustee with his or her accounts in respect of the guardianship, any property in his or her possession or control that is subject to the guardianship and any information requested by the Public Guardian and Trustee in respect of the guardianship. 1996, c. 2, s. 13. Same (3) Subsection (2) applies with ne…

20 (1) A statutory guardianship of property for a person is terminated if any of the following events occurs: 1. A guardian is appointed for the person by the court under section 22. 1.1 The statutory guardianship is terminated under subsection 16.1 (1), except as provided by subsection 16.1 (2). 2. Notice of the guardian’s resignation is given by the guardian to, i. the person, and ii. the Public Guardian and Trustee, if the Public Guardian and Trustee is not the guardian. 3. In the case of a statutory guardianship created under section 15, i. notice is given to the guardian that the certificate of incapacity has been cancelled under section 56 of the Mental Health Act, ii. notice is given to the guardian that the person has been discharged, unless the guardian has also received a notice of continuance issued under subsection 57 (2) of the Mental Health Act, iii. notice is given to the …

20.1 (1) A statutory guardian of property shall, on behalf of the incapable person, assist in arranging an assessment of the person’s capacity by an assessor if the assessment is requested by the incapable person and, (a) in the case of a statutory guardianship created under section 15, the person has been discharged from the psychiatric facility, a notice of continuance was issued under subsection 57 (2) of the Mental Health Act, and six months have elapsed since the notice of continuance was issued; or (b) in the case of a statutory guardianship created under section 16, six months have elapsed since the guardianship was created. 1996, c. 2, s. 13. Limit (2) Subsection (1) does not require a statutory guardian of property to assist in arranging an assessment if an assessment has been performed in the six months before the request. 1996, c. 2, s. 13. Section Amendments with date in forc…

20.2 (1) A person who has a statutory guardian of property may apply to the Consent and Capacity Board for a review of a finding that the person is incapable of managing property, (a) in the case of a statutory guardianship created under section 15, if the finding was made by an assessor, or by a physician who has authority to issue certificates of incapacity under the Mental Health Act, following an assessment of capacity that was performed after a notice of continuance was issued in respect of the person under subsection 57 (2) of the Mental Health Act; or (b) in the case of a statutory guardianship created under section 16, if the finding, (i) resulted in the issuance of the certificate of incapacity under subsection 16 (3), or (ii) was made by an assessor following an assessment of capacity that was performed after the creation of the statutory guardianship. 1996, c. 2, s. 13. Limit …

20.3 (1) The court may, on application by a person who is subject to a statutory guardianship of property, terminate the statutory guardianship. 1996, c. 2, s. 13. Suspension (2) In an application under this section, the court may suspend the powers of the statutory guardian. 1996, c. 2, s. 13. Procedure (3) Subsections 69 (0.1), (8) and (9) apply to an application under this section and, except for the purpose of subsection 69 (9), subsection 69 (6) does not apply. 1996, c. 2, s. 13. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 13 - 29/03/1996

21 If the Public Guardian and Trustee receives a notice concerning a statutory guardianship although another person is the guardian, he or she shall ensure that it is promptly forwarded to that person. 1992, c. 30, s. 21.

Court-Appointed Guardians of Property

22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 22 (1). Same (2) An application may be made under subsection (1) even though there is a statutory guardian. 1992, c. 30, s. 22 (2). Prohibition (3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that, (a) does not require the court to find the person to be incapable of managing property; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian. 1992, c. 30, s. 22 (3).

23 Part III (Procedure) applies to applications to appoint guardians of property. 1992, c. 30, s. 23.

24 (1) A person who provides health care or residential, social, training or support services to an incapable person for compensation shall not be appointed under section 22 as his or her guardian of property. 1992, c. 30, s. 24 (1); 1996, c. 2, s. 14 (1, 2). Exception (2) Subsection (1) does not apply to the incapable person’s spouse, partner or relative or to the following persons: 1. Repealed: 1996, c. 2, s. 14 (3). 2. The attorney for personal care. 3. The attorney under a continuing power of attorney. 1992, c. 30, s. 24 (2); 1996, c. 2, s. 14 (3); 2016, c. 23, s. 70 (2). P.G.T. (2.1) The court shall not appoint the Public Guardian and Trustee as a guardian under section 22 unless, (a) the application proposes the Public Guardian and Trustee as guardian; (b) the application is accompanied by the Public Guardian and Trustee’s written consent to the appointment; and (c) there is no oth…

25 (1) An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 25 (1). Contents of order (2) An order appointing a guardian of property may, (a) require that the guardian post security in the manner and amount that the court considers appropriate; (b) make the appointment for a limited period as the court considers appropriate; (c) impose such other conditions on the appointment as the court considers appropriate. 1992, c. 30, s. 25 (2). Exception (3) Clause (2) (a) does not apply if the guardian is the Public Guardian and Trustee or a trust corporation within the meaning of the Loan and Trust Corporations Act. 1992, c. 30, s. 25 (3).

26 (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 15. Who may make motion (2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under section 69 to be served with notice of that proceeding. 1996, c. 2, s. 15. Motion to vary (3) Subsection 69 (2), subsections 69 (5) to (9) and section 77 apply, with necessary modifications, to a motion to vary an order. 1996, c. 2, s. 15. Motion to substitute (4) Subsection 69 (1), subsections 69 (5) to (9), subsection 70 (1) and section 77 apply, with necessary modifications, to a motion to substitute another person as guardian. 1996, c. 2, s. 15. Section Amendments with date in force (d/m/y)…

27 (1) Loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants, are serious adverse effects for the purposes of this section. 1992, c. 30, s. 27 (1). Duty to investigate (2) The Public Guardian and Trustee shall investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur as a result. 1992, c. 30, s. 27 (2). Extent of investigation (3) In conducting an investigation under subsection (2), the Public Guardian and Trustee is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is required under subsection (3.1). 1996, c. 2, s. 16 (1). Application for temporary guardianship (3.1) If, as a result of the investigation, the Public Guardian and Tr…

28 (1) The court may terminate a guardianship created under section 22, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 17. Who may make motion (2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under section 69 to be served with notice of that proceeding. 1996, c. 2, s. 17. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 17 - 29/03/1996

29 In a motion to terminate a guardianship or temporary guardianship, the court may suspend the powers of the guardian or temporary guardian. 1996, c. 2, s. 17. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 17 - 29/03/1996

30 Part III (Procedure) applies to motions to terminate guardianships of property. 1992, c. 30, s. 30; 1996, c. 2, s. 18. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 18 - 29/03/1996

Property Management

31 (1) A guardian of property has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will. 1992, c. 30, s. 31 (1). (2) Repealed: 1996, c. 2, s. 19. Same (3) The guardian’s powers are subject to this Act and to any conditions imposed by the court. 1992, c. 30, s. 31 (3). Section Amendments with date in force (d/m/y) 1996, c. 2, s. 19 - 29/03/1996

31.1 Any person who has personal information about an incapable person to which the incapable person would be entitled to have access if capable, including health information and records, shall disclose it to the incapable person’s guardian of property on request. 2006, c. 19, Sched. B, s. 22 (4). Section Amendments with date in force (d/m/y) 2006, c. 19, Sched. B, s. 22 (4) - 22/06/2006

32 (1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit. 1992, c. 30, s. 32 (1). Personal comfort and well-being (1.1) If the guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit. 1996, c. 2, s. 20 (1). Personal care (1.2) A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions. 1996, c. 2, s. 20 (1). Exception (1.3) Subsection (1.2) does not apply in respect of a decision concerning the person’s personal care if the decision’s adverse consequences in respect of t…

33 (1) A guardian of property is liable for damages resulting from a breach of the guardian’s duty. 1992, c. 30, s. 33 (1). Same (2) If the court is satisfied that a guardian of property who has committed a breach of duty has nevertheless acted honestly, reasonably and diligently, it may relieve the guardian from all or part of the liability. 1992, c. 30, s. 33 (2). Exception, corporate directors (3) Subsection (2) does not apply to a guardian acting as a director of a corporation in which the incapable person is a shareholder unless the guardian has acted honestly, reasonably and diligently with a view to the best interests of the corporation. 2006, c. 34, s. 24 (1). Breach of duty (4) For the purposes of this section, a breach of duty includes a breach of a duty or other obligation by a guardian acting as a director of a corporation, whether arising in equity, at common law or by statu…

33.1 A guardian of property shall make reasonable efforts to determine, (a) whether the incapable person has a will; and (b) if the incapable person has a will, what the provisions of the will are. 1996, c. 2, s. 21. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 21 - 29/03/1996

33.2 (1) A person who has custody or control of property belonging to an incapable person shall, (a) provide the incapable person’s guardian of property with any information requested by the guardian that concerns the property and that is known to the person who has custody or control of the property; and (b) deliver the property to the incapable person’s guardian of property when required by the guardian. 1996, c. 2, s. 21. Property includes will (2) For the purposes of subsection (1), the property belonging to a person includes the person’s will. 1996, c. 2, s. 21. Copies of documents (3) A person who has custody or control of any document relating to an incapable person’s property that was signed by or given to the incapable person shall, on request, provide the incapable person’s guardian of property with a copy of the document. 1996, c. 2, s. 21. Section Amendments with date in forc…

33.3 (1) Despite any other Act, where a person who is acting as the guardian of property under this Act becomes the director of a corporation by reason of acting in that capacity, the guardian is not liable as a director for any debt or other liability or obligation of the corporation in existence at the time the guardian became a director. 2006, c. 34, s. 24 (2). Estate remains liable (2) Nothing in this section affects the liability of the estate on whose behalf a guardian is acting with respect to any debt or other liability or obligation of the corporation. 2006, c. 34, s. 24 (2). Section Amendments with date in force (d/m/y) 2006, c. 34, s. 24 (2) - 01/08/2007

34 A guardian of property has power to complete a transaction that the incapable person entered into before becoming incapable. 1992, c. 30, s. 34.

35 (1) If the Public Guardian and Trustee is the guardian of property for an incapable person immediately before the person’s death, the Public Guardian and Trustee may, but need not, exercise the powers of an executor to whom the incapable person’s property is given in trust for the payment of debts and the distribution of the residue, until notified of another person’s appointment as personal representative. 2009, c. 33, Sched. 2, s. 71 (6). Same (2) If the Public Guardian and Trustee exercises powers under subsection (1), it may be with respect to all of the property or such portion of the property as the Public Guardian and Trustee determines. 2009, c. 33, Sched. 2, s. 71 (6). Same (3) If the Public Guardian and Trustee exercises powers under subsection (1) only with respect to a portion of the property, the duties and responsibilities of the Public Guardian and Trustee in respect of…

35.1 (1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s will. 1996, c. 2, s. 22. Application (2) Subsection (1) does not apply in respect of a specific testamentary gift of money. 1996, c. 2, s. 22. Permitted dispositions (3) Despite subsection (1), (a) the guardian may dispose of the property if the disposition of that property is necessary to comply with the guardian’s duties; or (b) the guardian may make a gift of the property to the person who would be entitled to it under the will, if the gift is authorized by section 37. 1996, c. 2, s. 22. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 22 - 29/03/1996

36 (1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest. 1996, c. 2, s. 23. If residue insufficient (2) If the residue of the incapable person’s estate is not sufficient to pay all entitlements under subsection (1) in full, the persons entitled under subsection (1) shall share the residue in amounts proportional to the amounts to which they would otherwise have been entitled. 1996, c. 2, s. 23. Will prevails (3) Subsections (1) and (2) are subject to a contrary intention in the incapable person’s will. 1996, c. 2, s. 23. Se…

36.1 A recital, in a document executed by the Public Guardian and Trustee, that the Public Guardian and Trustee is the incapable person’s guardian of property under this Act is proof of the facts recited, in the absence of evidence to the contrary. 1994, c. 27, s. 62 (2). Section Amendments with date in force (d/m/y) 1994, c. 27, s. 62 (2) - 09/12/1994

37 (1) A guardian of property shall make the following expenditures from the incapable person’s property: 1. The expenditures that are reasonably necessary for the person’s support, education and care. 2. The expenditures that are reasonably necessary for the support, education and care of the person’s dependants. 3. The expenditures that are necessary to satisfy the person’s other legal obligations. 1992, c. 30, s. 37 (1). Guiding principles (2) The following rules apply to expenditures under subsection (1): 1. The value of the property, the accustomed standard of living of the incapable person and his or her dependants and the nature of other legal obligations shall be taken into account. 2. Expenditures under paragraph 2 may be made only if the property is and will remain sufficient to provide for expenditures under paragraph 1. 3. Expenditures under paragraph 3 may be made only if th…

38 (1) Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property. 1992, c. 30, s. 38; 1996, c. 2, s. 25 (1). Application of s. 31.1 (1.1) Section 31.1 also applies, with necessary modifications, to an attorney acting under a continuing power of attorney if there has been a finding that the grantor is incapable of managing property. 2023, c. 9, Sched. 35, s. 1. Authority under subs. 37 (5) (2) An attorney under a continuing power of attorney shall make an application to the court to obtain the authority referred to in subsection 37 (5). 1996, c. 2, s. 25 (2). Section Amendments with date in force (d/m/y) 1…

39 (1) If an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give directions on any question arising in connection with the guardianship or power of attorney. 1996, c. 2, s. 26; 2006, c. 19, Sched. B, s. 22 (5). Form of request (2) A request for directions shall be made, (a) on application, if no guardian of property has been appointed under section 22 or 27; or (b) on motion in the proceeding in which the guardian was appointed, if a guardian of property has been appointed under section 22 or 27. 1996, c. 2, s. 26. Applicant; moving party (3) An application or motion under this section may be made by the incapable person’s guardian of property, attorney under a continuing power of attorney, dependant, guardian of the person or attorney under a power of attorney for personal care, by the Public Guardian and Trustee, or by any…

40 (1) A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale. 1992, c. 30, s. 40 (1). Same (2) The compensation may be taken monthly, quarterly or annually. 1992, c. 30, s. 40 (2). Same (3) The guardian or attorney may take an amount of compensation greater than the prescribed fee scale allows, (a) in the case where the Public Guardian and Trustee is not the guardian or attorney, if consent in writing is given by the Public Guardian and Trustee and by the incapable person’s guardian of the person or attorney under a power of attorney for personal care, if any; or (b) in the case where the Public Guardian and Trustee is the guardian or attorney, if the court approves. 1996, c. 2, s. 27. Effect of power of attorney (4) Subsections (1) to (3) are subject to provisions respecting comp…

41 Repealed: 1996, c. 2, s. 28. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 28 - 29/03/1996

42 (1) The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed. 1992, c. 30, s. 42 (1). Attorney’s accounts (2) An attorney, the grantor or any of the persons listed in subsection (4) may apply to pass the attorney’s accounts. 1992, c. 30, s. 42 (2). Guardian’s accounts (3) A guardian of property, the incapable person or any of the persons listed in subsection (4) may apply to pass the accounts of the guardian of property. 1992, c. 30, s. 42 (3). Others entitled to apply (4) The following persons may also apply: 1. The grantor’s or incapable person’s guardian of the person or attorney for personal care. 2. A dependant of the grantor or incapable person. 3. The Public Guardian and Trustee. 4. The Children’s Lawyer. 5. A judgment creditor of the grantor or incapable person. 6. Any other person, with leave of the cou…

PART II THE PERSON

General

43 This Part applies to decisions on behalf of persons who are at least sixteen years old. 1992, c. 30, s. 43.

44 To exercise a power of decision under this Part on behalf of another person, a person must be at least sixteen years old. 1992, c. 30, s. 44.

45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 45; 1996, c. 2, s. 29. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 29 - 29/03/1996

Powers of Attorney for Personal Care

46 (1) A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care. 1992, c. 30, s. 46 (1). P.G.T. may be attorney (2) The power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is executed. 1996, c. 2, s. 30 (1). Prohibition (3) A person may not act as an attorney under a power of attorney for personal care, unless the person is the grantor’s spouse, partner or relative, if the person, (a) provides health care to the grantor for compensation; or (b) provides residential, social, training or support services to the grantor for compensation. 1992, c. 30, s. 46 (3); 1996, c. 2, s. 30 (2, 3); 2016, c. 23, s. 70 (2). Two or more attorneys (4) If the power of attorn…

47 (1) A person is capable of giving a power of attorney for personal care if the person, (a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and (b) appreciates that the person may need to have the proposed attorney make decisions for the person. 1992, c. 30, s. 47 (1). Validity (2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care. 1992, c. 30, s. 47 (2). Capacity to revoke (3) A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one. 1992, c. 30, s. 47 (3). Capacity to give instructions (4) Instructions contained in a power of attorney for personal care with respect to a decision the attorney is authorized to make are valid if, at the time the power of attorney…

48 (1) A power of attorney for personal care shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. 1996, c. 2, s. 31 (1). Persons who shall not be witnesses (2) The persons referred to in subsection 10 (2) shall not be witnesses. 1992, c. 30, s. 48 (2). (3) Repealed: 1996, c. 2, s. 31 (2). Non-compliance (4) A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor’s interests to do so. 1992, c. 30, s. 48 (4); 1996, c. 2, s. 31 (3). Section Amendments with date in force (d/m/y) 1996, c. 2, s. 31 (1-3) - 29/03/1996

49 (1) A provision in a power of attorney for personal care that confers authority to make a decision concerning the grantor’s personal care is effective to authorize the attorney to make the decision if, (a) the Health Care Consent Act, 1996 applies to the decision and that Act authorizes the attorney to make the decision; or (b) the Health Care Consent Act, 1996 does not apply to the decision and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed. 1996, c. 2, s. 32 (1). Method for confirmation (2) A power of attorney that contains a condition described in clause (1) (b) may specify the method for confirming whether the grantor is incapable of personal care…

50 (1) A power of attorney for personal care may contain one or more of the provisions described in subsection (2), but a provision is not effective unless both of the following circumstances exist: 1. At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provision and of subsection (4). 2. Within 30 days after the power of attorney was executed, an assessor made a statement in the prescribed form, i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor’s capacity, ii. stating the assessor’s opinion that, at the time of the assessment, the grantor was capable of personal care and was capable of understanding the effect of the provision and of subsection (4), and iii. setting out the facts on which the o…

51 (1) The attorney under a power of attorney for personal care shall, on the request of and on behalf of the grantor, assist in arranging an assessment of the grantor’s capacity by an assessor. 1996, c. 2, s. 32 (1). Limit (2) Subsection (1) does not require an attorney to assist in arranging an assessment if an assessment has been performed in the six months before the request. 1996, c. 2, s. 32 (1). Section Amendments with date in force (d/m/y) 1996, c. 2, s. 32 (1) - 29/03/1996

52 (1) An attorney under a power of attorney for personal care may resign but, if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to, (a) the grantor; (b) any other attorneys under the power of attorney; (c) the person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and (d) unless the power of attorney provides otherwise, the grantor’s spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act. 1992, c. 30, s. 52; 1996, c. 2, s. 33 (1); 2016, c. 23, s. 70 (3). Exception (1.1) Clause (1) (d) does not require a copy of the…

53 (1) A power of attorney for personal care is terminated, (a) when the attorney dies, becomes incapable of personal care or resigns, unless, (i) another attorney is authorized to act under subsection 46 (5), or (ii) the power provides for the substitution of another person and that person is able and willing to act; (b) when the court appoints a guardian for the grantor under section 55; (c) when the grantor executes a new power of attorney for personal care, unless the grantor provides that there shall be multiple powers of attorney for personal care; (d) when the power of attorney is revoked. 1992, c. 30, s. 53 (1); 1996, c. 2, s. 34 (1, 2). Execution of revocation (2) A revocation shall be in writing and shall be executed in the same way as a power of attorney for personal care. 1992, c. 30, s. 53 (2). (3) Repealed: 1996, c. 2, s. 34 (3). Section Amendments with date in force (d/m/y…

54 Repealed: 1996, c. 2, s. 35. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 35 - 29/03/1996

Court-Appointed Guardians of the Person

55 (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 55 (1). Prohibition (2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that, (a) does not require the court to find the person to be incapable of personal care; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian. 1992, c. 30, s. 55 (2).

56 Part III (Procedure) applies to applications to appoint guardians of the person. 1992, c. 30, s. 56.

57 (1) A person who provides health care or residential, social, training or support services to an incapable person for compensation shall not be appointed under section 55 as his or her guardian of the person. 1992, c. 30, s. 57 (1); 1996, c. 2, s. 36 (1, 2). Exception (2) Subsection (1) does not apply to the incapable person’s spouse, partner or relative or to the following persons: 1. The incapable person’s guardian of property. 2. The attorney for personal care. 3. The attorney under a continuing power of attorney for property. 1992, c. 30, s. 57 (2); 2016, c. 23, s. 70 (2). Exception (2.1) Subsection (1) does not apply to a person if the court is satisfied that there is no other suitable person who is available and willing to be appointed. 1996, c. 2, s. 36 (3). P.G.T. (2.2) The court shall not appoint the Public Guardian and Trustee as a guardian under section 55 unless, (a) the a…

58 (1) An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 58 (1). Contents of order (2) An order appointing a guardian may, (a) make the appointment for a limited period as the court considers appropriate; (b) impose such other conditions on the appointment as the court considers appropriate. 1992, c. 30, s. 58 (2). Full or partial guardianship (3) The order shall specify whether the guardianship is full or partial. 1992, c. 30, s. 58 (3).

59 (1) The court may make an order for full guardianship of the person only if the court finds that the person is incapable in respect of all the functions referred to in section 45. 1992, c. 30, s. 59 (1). Powers of guardian (2) Under an order for full guardianship, the guardian may, (a) exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety; (b) be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers; (c) settle claims and commence and settle proceedings on the person’s behalf, except claims and proceedings that relate to the person’s property or to the guardian’s status or powers; (d) have access to personal information, including health information and records, to which the person would be entitled to hav…

59.1 Any person who has personal information about an incapable person to which the incapable person would be entitled to have access if capable, including health information and records, shall disclose it to the incapable person’s guardian of the person on request if the guardian has the power referred to in clause 59 (2) (d). 2006, c. 19, Sched. B, s. 22 (8). Section Amendments with date in force (d/m/y) 2006, c. 19, Sched. B, s. 22 (8) - 22/06/2006

60 (1) The court may make an order for partial guardianship of the person for an incapable person if it finds that he or she is incapable in respect of some but not all of the functions referred to in section 45. 1992, c. 30, s. 60 (1). Same (2) The order shall specify in respect of which functions the person is found to be incapable. 1992, c. 30, s. 60 (2). Powers of guardian (3) Under an order for partial guardianship, the guardian may exercise those of the powers set out in subsections 59 (2), (3), (4) and (5) that are specified in the order. 1996, c. 2, s. 38. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 38 - 29/03/1996

61 (1) The court may vary an order appointing a guardian of the person under section 55 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 39. Who may make motion (2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under section 69 to be served with notice of that proceeding. 1996, c. 2, s. 39. Motion to vary (3) Subsections 69 (4) to (9) and section 77 apply, with necessary modifications, to a motion to vary an order. 1996, c. 2, s. 39. Motion to substitute (4) Subsection 69 (3), subsections 69 (5) to (9), subsection 70 (2) and section 77 apply, with necessary modifications, to a motion to substitute another person as guardian. 1996, c. 2, s. 39. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 3…

62 (1) Serious illness or injury, or deprivation of liberty or personal security, are serious adverse effects for the purposes of this section. 1992, c. 30, s. 62 (1). Duty to investigate (2) The Public Guardian and Trustee shall investigate any allegation that a person is incapable of personal care and that serious adverse effects are occurring or may occur as a result. 1992, c. 30, s. 62 (2). Extent of investigation (3) In conducting an investigation under subsection (2), the Public Guardian and Trustee is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is required under subsection (3.1). 1996, c. 2, s. 40 (1). Application for temporary guardianship (3.1) If, as a result of the investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of perso…

63 (1) The court may terminate a guardianship created under section 55, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 41. Who may make motion (2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under section 69 to be served with notice of that proceeding. 1996, c. 2, s. 41. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 41 - 29/03/1996

64 In a motion to terminate a guardianship or temporary guardianship, the court may suspend the powers of the guardian or temporary guardian. 1996, c. 2, s. 41. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 41 - 29/03/1996

65 Part III (Procedure) applies to motions to terminate guardianships of the person. 1992, c. 30, s. 65; 1996, c. 2, s. 42. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 42 - 29/03/1996

Duties of Guardians of the Person and Attorneys for Personal Care

66 (1) The powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith. 1992, c. 30, s. 66 (1). Explanation (2) The guardian shall explain to the incapable person what the guardian’s powers and duties are. 1992, c. 30, s. 66 (2). Decisions under Health Care Consent Act, 1996 (2.1) The guardian shall make decisions on the incapable person’s behalf to which the Health Care Consent Act, 1996 applies in accordance with that Act. 1996, c. 2, s. 43 (1). Other decisions (3) The guardian shall make decisions on the incapable person’s behalf to which the Health Care Consent Act, 1996 does not apply in accordance with the following principles: 1. If the guardian knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the guardian shall make the decision in accordance with the wish or instructi…

67 (1) Section 66, except subsections 66 (15) and (16), applies with necessary modifications to an attorney who acts under a power of attorney for personal care. 1996, c. 2, s. 44. Application of s. 59.1 (2) Section 59.1 applies, with necessary modifications, to an attorney who acts under a power of attorney for personal care if there has been a finding that the grantor is incapable of personal care. 2023, c. 9, Sched. 35, s. 2. Section Amendments with date in force (d/m/y) 1996, c. 2, s. 44 - 29/03/1996 2023, c. 9, Sched. 35, s. 2 - 08/06/2023

68 (1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney. 1996, c. 2, s. 44. Form of request (2) A request for directions shall be made, (a) on application, if no guardian of the person has been appointed under section 55 or 62; or (b) on motion in the proceeding in which the guardian was appointed, if a guardian of the person has been appointed under section 55 or 62. 1996, c. 2, s. 44. Applicant; moving party (3) An application or motion under this section may be made by the incapable person’s guardian of the person, attorney under a power of attorney for personal care, dependant, guardian of property or attorney under a continuing power of attorney, by the Public Guardian and Trustee, or by any other person with leave of…

PART III PROCEDURE IN GUARDIANSHIP APPLICATIONS Service of notices