All lawyers should keep in mind that it is the rights of the “incapable” person that
are paramount. The entire purpose of the guardianship is to protect the incapable
person from harm. At no time should the ‘rights’ or interests of the guardian take
precedence over those of the “incapable” person.
The fact is that a guardian has no rights vis a vis the “incapable” person, they
have only obligations.^31 It is the “incapable” person who has rights that need to
be recognized by everyone involved. A lawyer’s role, regardless of which “side”
in the dispute they may represent, is to ensure that the guardian is carrying out
their obligations toward the “incapable” person and that the “incapable” person’s
rights are being properly protected.
IV. PROTECTING THE RIGHTS OF CLIENTS SUBJECT TO A
GUARDIANSHIPOnce it has been confirmed that the client is subject to a guardianship or SDM,
and that they are capable to provide instruction on the specific issues they seek
assistance with, it is necessary to determine what course of action may offer the
most effective means of resolving the matter. Issues arising in the context of
statutory guardianships, whether held by the Office of the Public Guardian and
Trustee or a family member, can often be dealt with through more informal
processes, while issues related to court appointed guardianships often require
more formal court processes.
A. Dealing with Concerns of Clients without Terminating
GuardianshipIf a client wishes to re-assert their autonomy, terminating a guardianship and
returning full decision making authority to the client is usually the best way to
accomplish this. This, however, may not be possible or practical in all cases. In
some cases, the client may not be capable of making financial or personal care
(^31) See Chu v. Chang, [2009] O.J. No 4989 (Ont. SCJ) at para. 26.