In Ontario, guardianship of the person is a legal mechanism that allows an individual or entity to make personal care decisions for someone who is unable to do so themselves due to incapacity. Guardianship is a powerful tool designed to protect vulnerable individuals. However, it is also responsive to the variability of one’s capacity and is not intended to be permanent unless necessary. Terminating guardianship of the person is a process that can be initiated when the need for such oversight diminishes (ex. a change in circumstances or that alternative measures can be taken) or ceases altogether (ex. no longer incapable, death of person).
In this blog post, we will explore the legal framework surrounding the termination of a guardianship of the person in Ontario, the steps involved, and the circumstances under which termination may be appropriate.
Understanding Guardianship of the Person
Before delving into the termination process, it’s important to understand the duties and responsibilities of guardians of the person and the process for appointment.
In Ontario, under the Substitute Decisions Act, 1992 (“SDA”), guardianship of the person allows a guardian to make decisions related to personal care. These decisions can include health care, nutrition, shelter, clothing, hygiene, and safety.
Guardianship of the person may be granted by the court when it determines that the individual, referred to as the “incapable person,” is unable to make these decisions independently and requires decisions to be made on his or her behalf by a person authorized to do so. Usually, this person is a relative or close friend, but if no such person is willing or capable of acting, this can result in appointment of the Public Guardian and Trustee as the guardian of last resort.
In general, guardianship is typically viewed as a last resort, intended to be imposed only when no less restrictive alternatives, such as powers of attorney or other forms of support, are suitable.
Grounds for Termination
The termination of a guardianship of the person may occur for several reasons:
- Restoration of Capacity: The most common reason for terminating guardianship is the restoration of the individual’s capacity to make personal care decisions. If an individual who was previously deemed incapable regains their ability to make decisions independently, guardianship is no longer necessary.
- Change in Circumstances: If the circumstances that originally necessitated the guardianship have changed—such as improvements in the individual’s health or availability of other supports—the court may decide that guardianship is no longer required.
- Inadequate Guardianship: If the guardian is no longer able to fulfill their duties, whether due to misconduct, incapacity, or other reasons, the court may terminate the guardianship. In some cases, this may result in the appointment of a new guardian rather than a full termination.
- Death of the Incapable Person: Guardianship automatically terminates upon the death of the person under guardianship.
The Legal Process for Termination
The process for terminating guardianship of the person in Ontario involves several key steps:
- Application to the Court: To terminate court-ordered guardianship of the person, an application must be made to the Ontario Superior Court of Justice. This application can be made by the individual under guardianship, the guardian, or any other interested party, such as a family member or concerned friend.
- Supporting Evidence: The application must be supported by evidence that justifies the termination. For instance, if the application is based on the restoration of capacity, medical evidence such as assessments from qualified health care professionals must be provided to demonstrate the individual’s regained capacity.
- Hearing: Once the application is filed, a hearing is scheduled where the court will consider the evidence presented. The individual under guardianship, the guardian, and other interested parties may present their perspectives.
- Court’s Decision: After reviewing the evidence and hearing from all relevant parties, the court will decide whether to terminate the guardianship. If the court is satisfied that the individual is now capable or that the circumstances no longer warrant guardianship, it will issue an order to terminate the guardianship.
Considerations for Termination
When considering an application for termination, the court’s primary concern is the best interests of the individual under guardianship. The court will assess whether the person can make informed decisions about their personal care and whether adequate support is in place if guardianship is terminated.
The court may also consider whether there are alternative methods of support that would allow the individual to retain as much autonomy as possible. These alternatives could include appointing a power of attorney, relying on community resources, or implementing a supported decision-making arrangement.
Case Example: Ying (Cindy) Zheng v Long Zheng
In Ying (Cindy) Zheng v Long Zheng, Ying Zheng (“Ying”) commenced an application seeking relief under section 28(1), 63(1) and 42(1) of the SDA, declaring her capable of managing her personal care and property and an order terminating the guardianship of her person and property.
In support of her application, Ying provided several capacity assessments from qualified capacity assessors as well as a staff psychiatrist at the Centre for Addiction and Mental Health (“CAMH”). She also provided an in-home functional assessment from an occupational therapist.
The opinion of the assessor for personal care was that Ying was capable of making all personal care decisions in accordance with the criteria set out in the SDA. The psychiatrist’s opinion was that Ying was capable with respect to her psychiatric condition, which was diagnosed in 2004 in response to a closed head injury. In addition, the occupational therapist assessed the applicant as capable of independently engaging in her activities of daily living.
Long Zheng (“Long”), Ying’s brother, opposed the termination. In response, he provided Ying’s assessments to the neuropsychologist who had assessed her in the original guardianship application. Upon review, the neuropsychologist raised several issues with the validity of the assessments. As a result, Ying conducted her own review with an alternate neuropsychologist, who concluded the assessments were valid and reliable.
In response, Long brought a motion requesting further assessments given the conflicting reviews. However, the Court concluded that further assessments for capacity are generally not ordered when positive assessments of capacity exist. This is reflective of the invasive nature of capacity assessments. Furthermore, the Court stated that additional assessments are usually only required where there are significant defects, serious questions about the individual’s capacity, or questionable behaviour on assessment.
Accordingly, a positive assessment of capacity provides strong evidence in a termination application, so long as it is valid and sufficiently supported by medical evidence that an individual is capable of managing their personal care decisions.
Conclusion
Terminating guardianship of the person in Ontario is a significant legal step that reflects the evolving needs and circumstances of the individual under guardianship. Whether due to the restoration of capacity, changes in circumstances, or other factors, the termination process is designed to ensure that guardianship is only maintained as long as necessary for the protection and well-being of the individual.
For those seeking to terminate their guardianship, understanding the legal process and the importance of providing compelling evidence is crucial. Consulting with a legal professional who specializes in guardianship matters can help navigate the complexities of the termination process and ensure that the rights and interests of all parties are adequately represented.
If you believe that guardianship is no longer necessary for yourself or a loved one, consider contacting a lawyer to explore the best course of action tailored to your unique situation.
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