- Court Appointed Guardians
Court appointed guardians of property are often family members of the incapable
person. If the guardian is open to discussion, negotiation or mediation, it may be
possible to resolve most if not all of the client’s concerns through a co-operative,
informal process. If the guardian is not open to informal resolution, achieving a
resolution can become more complicated.
There is little in the way of oversight of court appointed guardians. Court
appointed guardians generally receive little supervision or direction from the
court. If problems arise, another party must bring the problem to the attention of
the Court on behalf of the ‘incapable’ person. To do this, it is generally necessary
to bring an application before the Superior Court of Justice (Estates Court) to
deal with the matter. It is up to the incapable person or another concerned
person^33 to present their case and convince the court that action is required to
protect them from a negligent or abusive guardian.
The fact that challenging any aspect of a court appointed guardianship requires
using complex and often expensive court processes, can act as a deterrent for
‘incapable’ persons who wish to challenge the actions of their guardian.
Where there is clear evidence of obvious wrong-doing or inability to act on the
part of the guardian, it is possible to seek a Court order terminating the
guardianship and/or replacing the guardian. Otherwise, it will be difficult to vary
or terminate the Guardianship based on the guardian’s actions rather than the
proven capacity of the client.
(^33) It may be necessary for a person other than the ‘incapable person’ to obtain leave from the
court in order for them to be allowed to bring their concerns before a judge.