COURT FILE NO.: CV-23-91951 DATE: 2024/06/11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

André Loyer and Francine Loyer Applicants – and – Capucine Loyer, Martine Lepage, Stéphane Loyer and the Office of the Public Guardian and Trustee Respondents

Counsel: Yasmine Atif, for the Applicants Carl Farah, for the Respondent Stéphane Loyer Danielle Charbonneau, for the Respondent the Office of the Public Guardian and Trustee

HEARD: January 16, 2024 and in writing

REASONS FOR JUDGMENT Rees J.

I. Overview

[1] André Loyer and Francine Loyer brought an application to declare Capucine Loyer incapable and for their joint appointment as guardians for her property and personal care. [1] André and Francine also sought, with Stéphane Loyer and Martine Lepage’s agreement, an order prospectively appointing Stéphane and Martine as substitute joint guardians for property and personal care, if André and Francine were no longer able to act as guardians, were to die, were to become incapable, were to be no longer willing to act, or were removed by the court.

[2] The Public Guardian and Trustee (PGT) objected to the appointment of prospective substitute joint guardians as matter of law, though it takes no position on the merits of the application and has no specific objection to the appointment of Martine and Stéphane as guardians. The PGT argues that the Substitute Decisions Act, 1992, S.O. 1992, c. 30, does not permit the prospective appointment of substitute guardians for property or personal care.

[3] At the hearing of the application, I granted the relief sought in part. I was satisfied that Capucine is incapable and that André and Francine ought to be appointed joint guardians for her property and personal care. But I adjourned the portion of the application for the prospective appointment of Stéphane and Martine as substitute joint guardians, and I directed the parties to make written submission on the legal issue raised by the PGT.

II. Issues

[4] This application raises four issues:

a. Is Capucine incapable of managing property and incapable in respect of her personal care?

b. If so, should André and Francine be appointed joint guardians for Capucine’s property and personal care?

c. Does the Act allow for the prospective appointment of substitute guardians for property and personal care?

d. If so, should Stéphane and Martine be appointed prospectively as substitute joint guardians for Capucine’s property and personal care?

III. Analysis

A. Statutory framework

[5] A person is presumed “capable” to do the activity or make the decision in question: s. 2. [2] The onus is on the person alleging that they are not.

[6] Before the court will make an order appointing a guardian for property, the court must find that the individual is incapable of managing their property and that they need to have decisions made about their property on their behalf by a person who is authorized to do so: ss. 22 and 25. The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that, (a) does not require the court to find the person to be incapable of managing property; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian: s. 22(3).

[7] Before the court will make an order appointing a guardian for personal care, the court must find that the person is incapable in respect of health care, nutrition, shelter, clothing, hygiene or safety, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so: s. 58(1).

B. Is Capucine incapable of managing property and incapable in respect of her personal care?

[8] A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: s. 6.

[9] A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: s. 45.

[10] These are functional tests.

[11] “Incapable” means “mentally incapable”, and “incapacity” means “mental incapacity”: s. 1(1). In other words, the incapacity to manage property or personal care must arise from a mental incapacity. In the context of litigation guardians, mental incapacity has been elaborated as stemming from “mental illness, dementia, developmental delay or physical injury and not from some other (non-legal capacity related) reason such as a lack of sophistication, education or cultural differences”: C.C. v. Children’s Aid Society of Toronto (2007), [2009] W.D.F.L. 4290 (Ont. S.C.), at para. 25.

Capucine is incapable of managing property and incapable in respect of her personal care

[12] Capucine is 51. She was adopted by André and his deceased spouse in 1972. She was born with an intellectual disability. She was evaluated for this application by a certified capacity assessor. The capacity assessor formed the opinion, which I accept, that Capucine is incapable of managing her property and personal care.

[13] Capucine is assessed as having an intellectual disability and dyslexia. As a result, she has significant learning disabilities. She has difficulty reading and writing, difficulty with arithmetic, a weak working memory, and problems of attention and concentration. Although she can understand the concept of time and simple arithmetic, she can only read and write simple words and phrases.

Property

[14] Capucine does not understand money or the concept of money. Capucine is unable to understand and appreciate information required for the management of her financial affairs because of her intellectual disability. She requires complete support to manage her money and personal finances, to protect her from exploitation, and to make decisions regarding her property.

[15] Thus, I find that Capucine is incapable of managing property. There is no alternative less restrictive of Capucine’s decision-making rights than the appointment of a guardian. As a result, I conclude that it is necessary for decisions to be made on her behalf by a person who is authorized to do so.

Personal care

[16] Apart from breakfast, Capucine is unable to prepare her meals. She is unable to shop for food or follow recipes. She is unable to determine what kind of shelter is suitable to her needs. She would not be able to find another shelter nor organize a move. Although she will shower as part of her routine, she requires prompting to brush her teeth and to look after her hair. She can independently use the toilet. She can do her own laundry and perform some rudimentary tidying of her room, provided this follows her routine. She can get dressed and undressed independently but requires reassurance in her choice of clothing. She rarely uses the telephone. Although she knows about 911, she would be unable to manage emergencies. She does not socialize. Capucine is unable to provide basic medical information regarding her health and medical conditions. She is unable to identify her medications or understand all their purposes. She would be unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding her health.

[17] Capucine is unable to understand and evaluate the personal care she requires due to her intellectual disabilities. She is unable to understand the consequences of her actions. She requires complete support for her healthcare needs, to plan appointments, to maintain proper nutrition, to care for her hygiene, to accomplish household tasks, and to recognize risks to her safety. Because of her intellectual disabilities, Capucine is unable to recognize the scope of support that she requires to meet her needs of daily living, her safety, and wellbeing.

[18] Capucine is not able to understand information that is relevant to making a decision concerning her own health care, nutrition, shelter, clothing, hygiene or safety because of her intellectual disability.

[19] Thus, I find that Capucine is incapable in respect of making decisions concerning her own health care, nutrition, shelter, clothing, hygiene or safety. There is no alternative less restrictive of Capucine’s decision-making rights than the appointment of a guardian. As a result, decisions need to be made on her behalf by a person who is authorized to do so.

C. Should André and Francine be appointed joint guardians for her property and personal care?

The law

[20] In considering the appointment of a proposed guardian under ss. 24(5) and 57(3) of the Act, the court shall consider:

a. whether there is an attorney for the incapable person under a continuing power of attorney;

b. the incapable person’s wishes (if they can be determined); and

c. the closeness of the relationship between the proposed guardian(s) and the incapable person.

[21] The overarching factor in the application for the appointment of a guardian is the best interests of the incapable person. The court should consider the fitness of the proposed guardian to carry out the duties of the office including: the obligation to care for another as a fiduciary; the obligation to consult with supportive family members; and the obligation to foster personal contact between the incapable person and supportive family members: Bennett v. Gotlibowicz, 2009 CarswellOnt 1878 (S.C.), at para. 19; Chu v. Chang, at para. 26; Roelandt v. Roelandt, 2015 ONSC 6874; and Wong v. Ontario (Office of the Public Guardian and Trustee), 2017 ONSC 268.

André and Francine should be appointed joint guardians for Capucine’s property and personal care

[22] As discussed, André is Capucine’s father. Francine is Capucine’s stepmother. André and Francine were married in 2015. André is a retired accountant; Francine a retired public health nurse.

[23] Since her adoption, Capucine lived with her parents. Following her mother’s death, she lived with her father. From 2013 until 2017, she lived with her father and stepmother. Since 2017, Capucine has lived in a foster home approved by “Projet-Partage”, a support service for adults with an intellectual disability provided by the Association pour l’intégration social d’Ottawa (“AISO”). André and Francine continue to spend lots of time with Capucine.

[24] Capucine has always required assistance with the activities of daily living. She was first assisted by her parents. Since her mother’s death, André continued providing her with help in managing her property and her activities of daily living. Since their marriage, both André and Francine have done so.

[25] With a view to ensuring that Francine had the necessary authority to provide for Capucine’s needs following her mother’s death, André and Francine commenced this application.

[26] Capucine has no power of attorney for property or personal care. Although André and Francine served Capucine personally with the application and explained in simple terms what they were seeking and why they were seeking it, Capucine’s current wishes regarding the appointment of guardians are unknown.

[27] I am satisfied that André and Francine both have a sufficiently close relationship with Capucine. I am also satisfied that they are fit to serve as guardians. They understand her needs and have been providing her with care for many years – in her father’s case, since her adoption. They have Capucine’s best interests at heart.

[28] I am satisfied that André and Francine understand and are fit to fulfil their obligations to care for Capucine as fiduciaries. They have committed to continue to involve Capucine in decision-making and they understand their obligation to consult with supportive family members, specifically Martine and Capucine’s foster family. Finally, they understand their obligation to encourage personal contact between Capucine and supportive family members, specifically Martine.

[29] It is in the best interests of Capucine that André and Francine be appointed jointly as full guardians of her property and for her personal care. I approve the plans they submitted for those purposes.

D. Does the Act allow for the prospective appointment of substitute guardians for property and personal care?

[30] André is 80 and Francine is 73. They wish to prospectively appoint substitute joint guardians in the event that they were no longer able to act as guardians, were to die, were to become incapable, were to be no longer willing to act, or were removed by the court.

[31] The proposed substitute joint guardians are Capucine’s brother, Stéphane, and Francine’s daughter, Martine.

[32] In letters to counsel, which the applicants filed as part of the record, the PGT objected to the prospective appointment of substitute joint guardians as matter of law. The PGT took the position that the Act does not permit the prospective appointment of substitute guardians for property or personal care. The applicants and Stéphane evidently disagreed with the PGT’s view of the law.

[33] The applicants proceeded with their request to prospectively appoint Stéphane and Martine as substitute joint guardians. No factum was filed with the application, even though one was required under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 38.09(1). Instead, the applicants included a request to dispense with the filing of a factum in the relief they sought.

[34] Dispensing with the factum should be discouraged. Doing so is unhelpful to the court. Declaring a person to be incapable is a serious matter and requires careful consideration. Further, where – as here – the PGT raises a legal objection to an application, it would assist the court for an applicant to file a factum to argue the point and support their position. This is not to say the PGT’s views must be accepted; it is rather that the issue needs to be properly argued in written submissions.

[35] At the court’s direction, this gap has now been filled. The applicants, Stéphane, and the PGT have each filed factums fully airing the parties’ respective positions.

[36] Stéphane argues that the appointment of prospective guardians is in Capucine's best interests given André and Francine’s advanced age, the fact that the appointment would prevent interruptions of the guardianship and additional legal expenses on Capucine's behalf, and that this prospective guardianship appointment is not incompatible with the Act.

[37] André and Francine agree. In the event the court does not agree with Stéphane’s position, André and Francine seek an order authorizing Stéphane and Martine, acting jointly, to bring a motion to substitute themselves as guardians of Capucine's property and personal care in the event that André and Francine were no longer able to act as guardians, were to die, were removed by the court, were to become incapable, or were to be no longer willing to act.

[38] It is a question of statutory interpretation. Does the Act allow for the prospective appointment of substitute guardians?

[39] The text, purpose, and context of the Act lead me to conclude that it was not the Legislature’s intention to allow for the prospective appointment of substitute guardians.

[40] Section 22 provides for court-appointed guardians of property. A similar provision was enacted for the appointment of guardians for personal care: s. 55.

[41] The Act allows the court to appoint two or more persons as joint guardians of property or may appoint each of them as guardian for a specified part of the property: s. 24(6). The Act also allows the court to appoint two or more persons as joint guardians of the person or may appoint each of them as guardian in respect of a specified period: 57(4).

[42] But the Act does not contemplate the prospective appointment of substitute guardians of property or personal care. Nor does the Act contemplate a survivorship for jointly court-appointed guardians. Instead, the Act provides a procedure to vary an order appointing a guardian or to substitute another person as guardian, on motion in the proceeding in which the guardian or guardians were appointed: ss. 26(1) and 61(1).

[43] This may be contrasted with powers of attorney. Unlike the court’s appointment of a guardian, the Act permits the continuing power of attorney to name a substitute attorney: ss. 11(1)(c) and 11(1)(d)(ii). The Act also provides for a survivorship for jointly named attorneys. In this regard, if two or more attorneys act jointly under the continuing power of attorney and one of them dies, becomes incapable of managing property or resigns, the remaining attorney or attorneys are authorized to act, unless the power of attorney provides otherwise: s. 7(5).

[44] The difference in statutory schemes arises from the nature of the appointments and the vulnerability of the person for whom decisions would be made. A power of attorney is an expression of the personal autonomy and will of the grantor. In contrast, the condition precedent for the court’s appointment of a guardian is that the individual has been determined to lack capacity to make decisions for property or personal care and as a result needs decisions made on her or his behalf, and the court is satisfied that there is no alternative course of action that would not require a finding of incapacity and would be less restrictive of the person’s decision-making rights. An attorney is a private appointment by the grantor; a guardian for property or personal care is public appointment by the court. Guardianship is meant to be a last resort. This is so because of the profound implications of appointing a guardian on the rights of the person who lacks capacity.

[45] When appointing a guardian, the court’s overriding duty is to the best interests of the person who lacks capacity: Bennett, at para 19; Chu, at para. 26; Consiglio v. Consiglio, 2012 ONSC 4629, at para. 37. To fulfil this duty, the court will consider all the circumstances, including the suitability of the proposed guardians, their relationship with the person who lacks capacity, their ability to manage the property or personal care of the person who lacks capacity, and the merits of the proposed plan for guardianship or for the management of property. As discussed, the court is required to consider: (a) whether the proposed guardian is the attorney under a continuing power of attorney; (b) the incapable person’s current wishes, if they can be ascertained; and (c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person: ss. 24(5) and 57(3).

[46] Importantly, these assessments are made at the time of the application for a court-appointed guardian. It is an assessment of a particular proposed guardian (or guardians), implementing a proposed plan, given the circumstances of the of the person who lacks capacity, determined at the time of the application. The life circumstances of proposed substitute guardians and their relationships to the person who lacks capacity could change over time. A court cannot project into the future to determine whether the prospective substitute guardians will be suitable. Similarly, the wishes of the person lacking capacity may also change over time.

[47] Guardians have the potential to significantly impact the rights of persons with disabilities who have capacity issues. It is therefore essential that guardians carry out their duties in a way that promotes and protects the rights of persons with disabilities. It is equally important that courts adopt an interpretation of the Act that promotes and protects these rights.

[48] It is inconsistent with the protection of the person who lacks capacity to order, in advance, the appointment of substitute guardians to take effect when a guardian dies, becomes incapable, or resigns. Otherwise, the person affected loses the protection of the court’s ongoing oversight.

[49] The safeguards in the Act are specifically intended to protect the person who lacks capacity. The Act places an emphasis on their procedural rights. It also aims to protect their autonomy and self-determination. See generally, Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: Ministry of the Attorney General in Ontario, 1987). I should not adopt an interpretation of the Act that reduces the safeguards provided to the person affected by the guardianship application.

[50] In this regard, I must also consider art. 12.4 of the Convention on the Rights of Persons with Disabilities, Can. T.S. 2010 No. 8, which provides:

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

[51] The Convention came into force on May 3, 2008. Canada ratified the Convention in 2010, with the following declaration and reservation:

Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law. To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal. Canada interprets Article 33 (2) as accommodating the situation of federal states where the implementation of the Convention will occur at more than one level of government and through a variety of mechanisms, including existing ones.

[52] The Supreme Court of Canada has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 48. The court has held that “t his follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law”: at para. 48. Courts are required to consider the relevant international instruments at the context stage of statutory interpretation: at para. 49. This interpretive presumption applies even where, as here, the legislation was enacted before a convention came into force and was ratified, and even where, as here, the legislation does not expressly implement Canada’s international obligations: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 69-71; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76.

[53] The interpretation advanced by the André, Francine, and Stéphane is not consistent with art. 12.4 of the Convention because its effect would be to reduce safeguards, including measures relating to the exercise of legal capacity free from conflict of interest and subject regular review by a competent, independent and impartial authority or judicial body.

[54] In respect of the potential for a conflict of interest, the PGT argues that prospectively appointing substitute guardians could lead to conflicts of interest between the substitute guardian and the person who lacks capacity when the principal guardian dies. For example, if a proposed substitute guardian is the brother or sister of the person who lacks capacity, this may put the proposed substitute in a conflict of interest when it comes time to divide the principal guardian’s estate between beneficiaries.

[55] Finally, the Act has been criticized for lacking automatic reviews or processes that monitor guardians and lacking mandatory periodic reporting requirements: ARCH Disability Law Centre, Decision, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship (Toronto: Law Commission of Ontario, 2014), at p. 35. The Law Commission of Ontario has also recommended certain reforms to the Act: Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship, Final Report (Toronto: Law Commission of Ontario, 2017), at p. 261ff. Although I make no comment on the criticism or the proposed reforms – these are properly matters for the Legislature to consider – they do underline that the court should not adopt an interpretation that decreases the level of scrutiny for the appointment of substitute guardians.

[56] André, Francine, and Stéphane point to the costs and delay involved in making a motion for a substitute guardian. These are real concerns. But the best interests of the person lacking capacity must be given priority over the costs of the eventual motion. Those best interests are best served by assessing a future motion on its own merits, including Capucine’s current wishes (if they can be ascertained), and Stéphane and Martine’s suitability.

[57] And I acknowledge the vulnerability of persons whose court-appointed guardian dies or becomes unable to function as a guardian. As ARCH puts it, “the ‘incapable’ person is left with all the limitations on his/her autonomy inherent in a guardianship, but without any of the supposed protections that a guardianship is expected to provide. If the ‘incapable’ person cannot initiate litigation to remove the guardian or cannot access legal supports, s/he may be left without any funds or forced to survive on far less than what his/her resources might otherwise allow”: Decision, Decisions, at p. 65.

[58] Although some delay may arise under the statutory scheme to substitute guardians, this can be greatly diminished when urgent, such as when a guardian dies or suddenly becomes unable to perform their duties. The court can certainly hear the motion to substitute a guardian on an expedited basis.

[59] Given my determination that the Act does not allow for the prospective appointment of substitute guardians, I need not consider whether Stéphane and Martine would be suitable guardians. To be clear, nothing I have said here should be construed as commenting on their suitability. That issue may be for another day.

[60] In the event the court did not agree with Stéphane’s position, André and Francine sought an order authorizing Stéphane and Martine, acting jointly, to bring a motion to substitute themselves as guardians of Capucine's property and personal care in the event that André and Francine were no longer able to act as guardians, were to die, were removed by the court, were to become incapable, or were to be no longer willing to act.

[61] I decline to make this order, as it is not a question the court need resolve today.

IV. Disposition

[62] The application is allowed in part. I declare Capucine incapable of managing her property. I also declare Capucine incapable in respect of making decisions concerning her own health care, nutrition, shelter, clothing, hygiene and safety.

[63] I appoint jointly André and Francine to be full guardians for property and personal care. The plan of management for the property and the guardianship plan are approved.

[64] There shall be no costs of this application.

[65] André and Francine shall serve a copy of the order and this decision on Capucine.

Justice Owen Rees

Released: June 11, 2024

Appendix

Substitute Decisions Act, 1992, S.O. 1992, c. 30

Interpretation

1 (1) In this Act,

“incapable” means mentally incapable, and “incapacity” has a corresponding meaning; (“incapable”, “incapacité”)

Presumption of capacity

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.

Same

(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.

Exception

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.

Onus of proof, contracts and gifts

(4) In a proceeding in respect of a contract entered into or a gift made by a person while his or her property is under guardianship, or within one year before the creation of the guardianship, the onus of proof that the other person who entered into the contract or received the gift did not have reasonable grounds to believe the person incapable is on that other person.

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Continuing power of attorney for property

Death, etc., of joint attorney

7 (5) If two or more attorneys act jointly under the continuing power of attorney and one of them dies, becomes incapable of managing property or resigns, the remaining attorney or attorneys are authorized to act, unless the power of attorney provides otherwise.

Resignation of attorney

11 (1) An attorney under a continuing power of attorney may resign but, if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to,

(c) the person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and

(d) unless the power of attorney provides otherwise, the grantor’s spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if,

(ii) the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

Court appointment of guardian of property

22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

Same

(2) An application may be made under subsection (1) even though there is a statutory guardian.

Prohibition

(3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

Appointment criteria

Criteria

24 (5) Except in the case of an application that is being dealt with under section 77 (summary disposition), the court shall consider,

(a) whether the proposed guardian is the attorney under a continuing power of attorney;

(b) the incapable person’s current wishes, if they can be ascertained; and

(c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.

Two or more guardians

(6) The court may, with their consent, appoint two or more persons as joint guardians of property or may appoint each of them as guardian for a specified part of the property.

Finding of incapacity

25 (1) An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

Contents of order

(2) An order appointing a guardian of property may,

(a) require that the guardian post security in the manner and amount that the court considers appropriate;

(b) make the appointment for a limited period as the court considers appropriate;

(c) impose such other conditions on the appointment as the court considers appropriate.

Exception

(3) Clause (2) (a) does not apply if the guardian is the Public Guardian and Trustee or a trust corporation within the meaning of the Loan and Trust Corporations Act.

Variation or substitution of appointment order

26 (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed.

Incapacity for personal care

45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Court appointment of guardian of the person

55 (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

Prohibition

(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of personal care; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

Appointment criteria

Criteria

57 (3) Except in the case of an application that is being dealt with under section 77 (summary disposition), the court shall consider,

(a) whether the proposed guardian is the attorney under a continuing power of attorney for property;

(b) the incapable person’s current wishes, if they can be ascertained; and

(c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.

Two or more guardians

(4) The court may, with their consent, appoint two or more persons as joint guardians of the person or may appoint each of them as guardian in respect of a specified period.

Finding of incapacity

58 (1) An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

Variation or substitution of appointment order

61 (1) The court may vary an order appointing a guardian of the person under section 55 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed.

[1] Because several parties have the surname Loyer, I will use first names in these reasons to distinguish among the parties.

[2] The relevant provisions are set out in an appendix.