their own costs as well as those of the guardian, with no guarantee that the Court
will order any reimbursements. Even if a Court order is obtained, there is no
guarantee the guardian will have the funds to reimburse the ‘incapable’ person.
One always has to balance the time, effort and cost involved in pursing litigation
against a guardian with the potential results of such action. In many cases the
potential costs may outweigh the potential gains.
b. Management PlansWhen a person applies to the Court to be appointed Guardian, they are required
to submit a management plan outlining how the person’s assets will be used to
ensure the person receives the care and support they require. Some
management plans are fairly basic.
It should be possible to turn to the PGT or the Court to challenge a guardian if
they fail to follow the management plan. However, it is not always clear that such
action will resolve the problem.
c. No Mandatory Reassessment of CapacitySurprisingly, guardianship orders rarely, if ever, include any requirement that the
‘incapable’ person be assessed on a regular basis to confirm whether the
guardianship is still required. Within the court appointed guardianship system, no
one is responsible to ensure that an ‘incapable’ person’s capacity is regularly
assessed to ensure that they do not remain subject to a guardianship if they have
regained capacity. If the person is unaware of their rights or unable to obtain
assistance, they are unlikely to be in a position to take action to alter their
situation. The result is that once found incapable a person can, in some cases,
continue to be subject to a court appointed guardianship long after they have
improved to the point that the guardianship is no longer necessary.