B. Terminating a GuardianshipThe most effective way to promote and protect a client’s autonomy and resolve
most issues related to a guardianship is to terminate the guardianship and return
control over decision making to the client.^35 This is only an option when it is
possible to have the client declared capable of managing their property or
personal care. An assessment by a designated capacity assessor is the most
effective, although not the only, way to demonstrate that a client is capable. A
lawyer must canvas for themselves the likelihood that the client could “pass’ an
assessment. Given the time and costs involved in having a person assessed, it is
best not to embark on the process unless there is at least a good chance that the
client is capable. Once the client has been found capable, the options available
and the processes to follow to terminate a guardianship will depend upon the
type of guardianship the client is subject to.
- Removing a Statutory Guardian (PGT or Other)
Generally, the PGT acts as guardian only as a last resort when no other person
is available to act. The PGT will not remain as Guardian if there is evidence that
the person granted a power of attorney for property while capable.^36 While the
PGT may become the guardian of property by default, pursuant to s. 17 of the
SDA, family members can apply to the PGT to take over as statutory guardian. In
(^35) In some cases it may be worth considering whether having another Guardian appointed may
resolve problems and offer the ‘incapable person’ a chance to work more co-operatively with a
new Guardian. 36
Pursuant to s. 16.1 of the Substitute Decisions Act, 1992, a statutory guardianship will be
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 the incapable person’s
property;
c) the PGT receives a copy of the power of attorney and a written undertaking signed by
the attorney to act in accordance with the power of attorney;
d) if someone has replaced the PGT as statutory guardian under s.17, the statutory
guardian receives a copy of the power of attorney and a written undertaking signed
by the attorney to act in accordance with the power of attorney;