- The Public Guardian and Trustee becomes statutory guardian of property when a capacity assessor issues a certificate of incapacity, or, for psychiatric facility patients, when a physician's certificate is sent to it.
- A spouse, partner or relative can apply on Form 1 with a Form 2 management plan to replace the Public Guardian and Trustee.
- If you are not eligible or prefer the court route, you can apply to the Ontario Superior Court of Justice to be appointed guardian of property.
When a family member can no longer manage their money and property, and no one holds a suitable power of attorney, the Public Guardian and Trustee (PGT) may end up managing their affairs. Many families would rather have someone close to the person take on that role.
This guide explains how statutory guardianship of property begins in Ontario, who can apply to replace the PGT, what the application involves, and what duties come with the job.
How statutory guardianship of property starts
Under the Substitute Decisions Act, 1992 (SDA), any person may ask a capacity assessor to assess whether another person can manage property. The purpose is to decide whether the PGT should become that person's statutory guardian of property. If the assessor issues a certificate of incapacity, the PGT becomes the statutory guardian.
The request must be made on the prescribed form, Form 4 under O. Reg. 26/95. The person asking must state that they know of no attorney under a continuing power of attorney who has authority over all of the person's property. This route is meant for people without such a power of attorney, so the requester must make enquiries and believe none exists.
There is a different path for patients of a psychiatric facility. No capacity assessor is involved. A physician issues a certificate of incapacity under the Mental Health Act, and the officer in charge sends it to the PGT, which then becomes statutory guardian of property under SDA s. 15.
Assessment costs and the right to a review
Capacity assessors set their own fees. In most cases the person who asked for the assessment pays the assessor. Fees vary, so ask about the cost before booking.
The person found incapable must be told they can apply to the Consent and Capacity Board for a review of the finding.
Who can apply to replace the PGT
Under SDA s. 17(1), the following may apply to the PGT to replace it as statutory guardian of property:
- The incapable person's spouse or partner
- A relative of the incapable person
- An attorney under a continuing power of attorney that does not cover all of the property
- A trust corporation, if the spouse or partner consents in writing
If you are not a spouse, partner or relative, or you would rather go through a judge, there is a court route, described below.
The application: forms, what the PGT weighs, and cost
The application uses Form 1 under O. Reg. 26/95, and a management plan on Form 2 must come with it. The management plan sets out how you intend to handle the person's property. If the application is approved, the guardian must follow it.
In deciding, the PGT must consider the incapable person's current wishes and how close the applicant's relationship is to them. The PGT may also refuse to appoint the applicant unless they provide security in an amount the PGT sets.
| Item | What to know |
|---|---|
| Application | Form 1 with a Form 2 management plan |
| PGT considers | Current wishes and closeness of relationship |
| Security | The PGT may require it, in an amount it sets |
| Review fee | $382, payable when the Certificate transferring guardianship is issued |
PGT fees may be updated, so check the PGT fee page before you apply.
Duties and pay once you are guardian
A guardian of property is a fiduciary and must carry out their powers and duties diligently. In plain terms, you must act in the person's interests, not your own, and you must follow the approved management plan.
A guardian may take annual compensation according to the prescribed fee scale. Keep clear records of money in and out, since you may need to show how you handled the property.
The court route and next steps
Instead of replacing the PGT, a person can apply to the Ontario Superior Court of Justice to be appointed guardian of property by a judge under SDA s. 22. This suits applicants who are not a spouse, partner or relative, or who prefer it.
- Confirm how the PGT became guardian and whether any continuing power of attorney exists
- Confirm you fall within the list of eligible applicants
- Prepare Form 1 and a realistic Form 2 management plan
- Gather information about the person's property, debts and income
- Be ready to provide security if the PGT asks
- Check the current PGT fee page
- Speak with a lawyer if the family disagrees or the property is complex
Frequently asked questions
Can anyone ask for a capacity assessment?
Any person may ask a capacity assessor to assess another person's capacity to manage property. The request is made on Form 4, and the requester must state they know of no attorney under a continuing power of attorney with authority over all the property.
Who pays for the assessment?
Assessors set their own fees. In most cases the person who asked for the assessment pays.
What does the PGT look at when I apply?
It must consider the incapable person's current wishes and how close your relationship is to them. It may also require security in an amount it sets.
What if I am not a relative or spouse?
You can apply to the Ontario Superior Court of Justice to be appointed guardian of property by a judge. A lawyer can explain whether that route suits your situation.
Sources
- Substitute Decisions Act, 1992 (e-Laws) — Ontario e-Laws
- Mental Health Act, R.S.O. 1990, c. M.7 (CanLII) — canlii.org
- Ontario.ca – Mental capacity — ontario.ca
- Ontario.ca – Guardianship — ontario.ca
- Ontario.ca – Ontario Public Guardian and Trustee fees — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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