Pursuant to s. 20.1 of the SDA, statutory guardians are required to arrange a
capacity assessment upon request, as long as no assessment has been
performed during the last six months.
- Terminating a Court Appointed Guardianship
To terminate a court appointed guardianship it is necessary to make a motion to
the Superior Court of Justice (Estates Court) to obtain a court order terminating
the guardianship. Although this is generally a fairly straightforward process, as
long as the client can produce sufficient evidence of capacity, the court process
can become complicated if a guardian opposes the motion.
a. Preparing Motion RecordThe motion record should include the initial Order declaring the person incapable
and appointing the guardian, as well as the capacity assessments upon which
the order was based. The record should also include the new assessments
supporting the termination of the guardianship. New capacity assessments
cannot be more than six months old when submitted to the Court. These
materials should be presented as exhibits to the affidavit of the person seeking to
terminate the guardianships. It is possible to follow a summary process, but only
if all criteria are met and no one opposes the motion.^39
It is best, in addition to requesting orders declaring the client capable and
terminating the guardianship(s), to also seek an order requiring the guardian to
transfer control of the client’s property to the client and, where a guardianship for
property is concerned, an order, pursuant to s. 42(1) of the SDA, requiring the
guardian to pass their accounts upon the termination of the guardianship.
(^39) See Substitute Decisions Act, 1992, PART III, ss. 69-77.