Default SDM where no Guardianship Order is in Place

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-10-04
CLNP Page ID:	2417
Page Categories:	[Substitute Decision Makers]
Citation:	Default SDM where no Guardianship Order is in Place, CLNP 2417, <https://rvt.link/dc>, retrieved on 2024-10-04
Editor:	Sharvey
Last Updated:	2024/10/04

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Overview

The core legal issue is,

• Who is the default Substitute Decision Maker ("SDM") where:
  • The person has been treated as incapable for that person's whole childhood, up to and including on the day prior to the person reaching the age of majority, and,
  • Where the person continue to appear incapable after the age of 18; and,
  • Where no guardianship order has been granted by the Superior Court under the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

Summary of the Law on Capacity

Based on my review of the laws, there does not appear to be any default SDM for people over 18 years of age who appear to be incapable based on assumptions made about them when they were under 18 years of age.

See Also

• Litigation Guardian for Mental Incapacity (LTB)

Forms

• English - 004-0242e - Form 3 - Guardianship Plan
• Form 2 - Management Plan

Presumption of Capcity

Substitute Decisions Act, 1992, S.O. 1992, c. 30

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).

(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).

(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).

(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 the contract or received the gift did not have reasonable grounds to believe the person incapable is on that other person. 1992, c. 30, s. 2 (4).

...

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).

(2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one. 1992, c. 30, s. 8 (2).

...

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.

(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 inquiries and has no knowledge of any spouse, partner or relative of the other person who intends to make an application under section 22 for the appointment of a guardian of property for the other person. 1996, c. 2, s. 10; 2016, c. 23, s. 70 (2).

(3) The assessor may issue a certificate of incapacity in the prescribed form if he or she finds that the person is incapable of managing property. 1996, c. 2, s. 10.

...

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).

(2) The application shall be in the prescribed form. 1996, c. 2, s. 11.

...

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).

(2) An application may be made under subsection (1) even though there is a statutory guardian. 1992, c. 30, s. 22 (2).

...

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

...

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.

....

46 (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).

...

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).

(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).

...

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).

...

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).

(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 have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person’s property or to the guardian’s status or powers;

(e) on behalf of the person, make any decision to which the Health Care Consent Act, 1996 applies;

(e.1) make decisions about the person’s health care, nutrition and hygiene;

(f) make decisions about the person’s employment, education, training, clothing and recreation and about any social services provided to the person; and

(g) exercise the other powers and perform the other duties that are specified in the order. 1992, c. 30, s. 59 (2); 1996, c. 2, s. 37 (1); 2006, c. 19, Sched. B, s. 22 (7).

(3) If the guardian has custodial power over the person and the court is satisfied that it may be necessary to apprehend him or her, the court may in its order authorize the guardian to do so; in that case the guardian may, with the assistance of a police officer, enter the premises specified in the order, between 9 a.m. and 4 p.m. or during the hours specified in the order, and search for and remove the person, using such force as may be necessary. 1992, c. 30, s. 59 (3).

...

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).

Health Care Consent Act, 1996

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1996, c. 2, Sched. A, s. 4 (1).

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. 1996, c. 2, Sched. A, s. 4 (2).

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be. 1996, c. 2, Sched. A, s. 4 (3).

...

9 In this Part,

“substitute decision-maker” means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment. 1996, c. 2, Sched. A, s. 9.

...

20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person’s spouse or partner.

5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person. 1996, c. 2, Sched. A, s. 20 (1); 2016, c. 23, s. 51 (1); 2021, c. 4, Sched. 11, s. 14 (1, 2).

(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent. 1996, c. 2, Sched. A, s. 20 (2); 2021, c. 4, Sched. 11, s. 14 (3).

(3) A person described in a paragraph of subsection (1) may give or refuse consent only if no person described in an earlier paragraph meets the requirements of subsection (2). 1996, c. 2, Sched. A, s. 20 (3).

(4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may give or refuse consent if he or she believes that no other person described in an earlier paragraph or the same paragraph exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision. 1996, c. 2, Sched. A, s. 20 (4).

(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent. 1996, c. 2, Sched. A, s. 20 (5).

...

33 (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf. 1996, c. 2, Sched. A, s. 33 (1).

Application by proposed representative (2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person. 1996, c. 2, Sched. A, s. 33 (2).

Exception (3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority. 1996, c. 2, Sched. A, s. 33 (3).

Parties (4) The parties to the application are:

1. The incapable person.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1).

4. The health practitioner who proposed the treatment.

5. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 33 (4).

(5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person’s behalf,

(a) to the proposed treatment;

(b) to one or more treatments or kinds of treatment specified by the Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or

(c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it. 1996, c. 2, Sched. A, s. 33 (5).

(6) The Board may make an appointment under this section if it is satisfied that the following requirements are met:

1. The incapable person does not object to the appointment.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person’s best interests. 1996, c. 2, Sched. A, s. 33 (6).

...

41 Section 20 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission. 1996, c. 2, Sched. A, s. 41.

Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 SCR 722

77 The law presumes a person is capable to decide to accept or reject medical treatment: s. 4(2) of the Act. At a capacity hearing, the onus is on the attending physician to prove that the patient is incapable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions. Professor D. N. Weisstub, in his Enquiry on Mental Competency: Final Report (1990), at p. 116 (“Weisstub Report”), notes the historical failure to respect this presumption:

The tendency to conflate mental illness with lack of capacity, which occurs to an even greater extent when involuntary commitment is involved, has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change. For this reason it is particularly important that autonomy and self determination be given priority when assessing individuals in this group.

The Board must avoid the error of equating the presence of a mental disorder with incapacity. Here, the respondent did not forfeit his right to self-determination upon admission to the psychiatric facility: see Fleming v. Reid, supra, at p. 86. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.

78 Section 4(1) of the Act describes these elements as follows:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.

Manuel v. Lafarge et al., 2024 ONSC 3790 (CanLII)

[37] Sections 2(1) and 2(3) of Substitute Decisions Act, 1992, S.O. 1992, c. 30 dictate that an adult is presumed to have capacity to enter into a binding contract unless there are reasonable grounds to question that capacity:

Presumption of capacity

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).

…

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).

[38] Within the context of medical care, the majority of the Supreme Court of Canada found in Starson v. Swayze, 2003 SCC 32 that capacity contained two constituent elements (at para. 78):

Section 4(1) of the [Substitute Decisions] Act describes these elements as follows:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board's finding of incapacity was based on their perception of Professor Starson's failure in this regard.

[39] While, strictly speaking, the Supreme Court’s decision applies to capacity to consent as it relates to medical treatment, I have not seen any jurisprudence that suggests that a different test ought to be imposed in other areas of the law.

[40] Lack of capacity may vitiate a contract and it may also inform unconscionability and duress: see Hart v. O’Connor, [1985] A. C. 1000, [1985] 2 All E.R. 880 (P.Q.).

Ponniah et al. v. Ramachandran et al., 2018 ONSC 2646 (CanLII)

[16] In every respect, there is a presumption of capacity.[1] It is only when the presumption is displaced that a Litigation Guardian will be appointed. There should be reasonable grounds to prompt the request for a formal capacity assessment. To declare someone mentally incapable must be a decision of the court taken largely on the basis of recent medical evidence.[2]

[17] The purpose of requiring a Litigation Guardian for parties under disability is for the protection of the party, the other parties and the court. A Litigation Guardian ensures a competent person is instructing counsel and taking steps in the litigation while exercising a duty to act for the party’s benefit. The other parties are provided the protection of a competent person to instruct counsel, to be responsible for costs and for seeing that court orders and judgments are obeyed. The court is provided assurance that its process is not abused by or against a party under disability and that its orders will be obeyed.[3]

Lockhart v. Lockhart, 2021 ONCA 329 (CanLII)

[3] The appellant submits that the motion judge erred in law by misapplying the capacity test for a POAPC and by placing the onus on him to establish June’s capacity to grant the POAPC. We disagree. The motion judge clearly understood the test of capacity under the POAPC and applied it correctly. Moreover, we see no error in the motion judge’s ruling, pursuant to s. 2(3) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, that the appellant had reasonable grounds to believe that June was incapable of entering into the POAPC, and therefore could not rely upon the presumption of capacity. That holding was supported by factual findings the motion judge was entitled to make relating to the manner in which the POAPC was executed, efforts by the appellant to avoid an assessment of June’s competence to execute a POAPC, and the significant delay by the appellant in disclosing that the POAPC was executed.

[4] Nor do we accept the appellant’s submissions that the motion judge misapprehended or failed to consider evidence, committed palpable and overriding errors in making findings, or failed to give adequate reasons for her decision. We find no errors in her analysis, and her reasons for decision adequately address the evidence and issues before her.

Robert Lockhart personally and in his capacity as attorney for property of June Lockhart v. Barbara Lockhart personally and in her capacity as attorney for property of June Lockhart, 2022 CanLII 30680 (SCC)

The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C68651, 2021 ONCA 329, dated May 19, 2021, would have been dismissed.

Lockhart v. Lockhart, 2020 ONSC 4667 (CanLII)

[48] The Applicant submits that if Dr. Shulman’s report is not persuasive, then the 2018 Power of Attorney for Personal Care should be declared to be of no force and effect because the Respondent has failed to prove that Mrs. Lockhart had the capacity to make the 2018 Power of Attorney for Personal Care and he is unable to rely on the presumption of capacity as set out in s. 2 of the SDA. Specifically, she asserts that the presumption is not available to the Respondent because he had reasonable grounds to believe that Mrs. Lockhart was incapable of making a power of attorney for personal care.

[49] I agree that the Respondent had reasonable grounds to believe that Mrs. Lockhart did not have capacity to make the 2018 Power of Attorney for Personal Care. That document was signed on December 28, 2018, a little more than two months before Mrs. Lockhart underwent a capacity assessment with respect to her ability to manage property. If the Respondent believed that Mrs. Lockhart had capacity to make the 2018 Power of Attorney for Personal Care, it would follow that he would permit Ms. Kaye to assess Mrs. Lockhart for that purpose as well so that his belief could be verified.

...

[54] Based on the record, the Respondent has not shown that Mrs. Lockhart had the capacity to make the 2018 Power of Attorney for Personal Care. In the circumstances of this case, the presumption of capacity does not assist the Respondent. Accordingly, I find that the 2018 Power of Attorney for Personal Care is not valid.