What is adult guardianship?
Most people are aware of the concept of appointing a guardian for your minor children in your will. But some children will require guardianship into adulthood because of disabilities. If your child is reaching adulthood and will be unable to manage on their own, you will not only need to appoint a guardian in your will in case you pass away, but you should also apply to be your child’s guardian when he or she reaches the age of majority.
Guardianship of an adult includes making decisions for the person related to personal care and health, and related to property and finances. Anyone can apply to be a guardian of a disabled person; it doesn’t have to be a parent.
When does an adult require a guardian?
An adult requires a guardian when he or she is incapable. Lack of capability can apply to dealing with property, finances and assets, and to healthcare, safety, housing and personal care. Legally, “incapable” means the person cannot understand information they need to know to make decisions or can’t be expected to understand the consequences of decisions. The lack of capability can be the result of a disability, dementia or an injury.
What are the responsibilities of a guardian of an adult?
The guardian’s responsibility is to protect the person, their property and their interests. There are two types of guardians – of property and of the person. A guardian of property may pay bills, deal with bank accounts and investments and manage real estate for a person unable to do so. A guardian of the person will help manage personal needs such as shelter, nutrition and healthcare for someone who cannot look after these matters on their own. The two types of guardianship do overlap and the guardians may be the same person.
Guardians are responsible for keeping records related to the incapable person’s assets, and must follow the terms of the approved management plan, but generally they can do almost anything the incapable person would have done. Making a will or power of attorney are the only things the guardian cannot do for the person.
One important responsibility you will have as the guardian of your adult child is to make arrangements for your child’s care and guardianship for after you pass away.
How do I apply?
In cases where a person has acquired their disability, such as an elderly parent with dementia or someone injured in an accident, if the person previously prepared a power of attorney, that will guide the appointment of guardians and may even make it unnecessary to officially have a guardian appointed. If you want to be appointed the guardian of your disabled child, you must apply to the court. In Ontario, the application includes preparation of a management plan for the child; that process includes answering a series of standardized questions.
Once an application for guardianship has been approved, the order of guardianship will likely include supporting evidence for the need for guardianship – for example, a doctor or “capacity assessor” may provide evidence confirming the person requires guardianship. The determination of incapacity can be complicated – many people with disabilities are quite capable of carrying out normal day-to-day tasks, but may not understand complex financial matters, for example.
The application for guardianship of both the child and his or her assets should be made when the child is nearing adulthood (age 18 or 19, depending on jurisdiction). Do not wait until you, the parent, are getting older. If the child is capable of making a will and/or power of attorney, they should do so because this will make things easier for the child after you are gone. A capacity assessment should be done first to confirm – and later prove, if necessary – that the child is capable of understanding those documents.
If a person is determined to be incapable, and no guardian has been appointed, the provincial Public Guardian becomes the person’s guardian. If you are not appointed as guardian of your child, the child, once past the age of majority, can legally do things without your consent that you may prefer to have been involved in. For example, the now-adult child could ask that you not be part of healthcare discussions with his or her doctors, and can spend their own money as they see fit.
The matter of guardianship is obviously one that requires careful legal and medical consultation, so discuss it with your child’s doctors and your lawyer before making final decisions.