Anyone 18 years or older who has a sufficient interest in the personal or financial wellbeing of an adult can ask the court to be appointed as a guardian or co-decision-maker for that person.
The Public Guardian and Trustee may become a property guardian or co-decision-maker for the adult only if no relative or friend is willing to take on the responsibility.
Often times the spouse of a dependant adult or one of their adult children make the application. A paid care provider or others who may have a conflict of interest cannot, however, be appointed unless the court considers them to still be the best choice.
The court can order that the adult needs a co-decision-maker to help make reasonable decisions. Or, if the adult’s condition is serious enough, the court can order that someone simply has the power to make decisions for the adult, as a guardian.
Before any such order can be made, there must be at least two written opinions that the adult is incapable to some degree of making decisions about their affairs. Assessments can be made by a qualified professional such as a doctor, nurse, psychologist, occupational therapist, social worker or speech-language pathologist.
Someone who wants to be appointed guardian or co-decision-maker must complete certain application forms. Applicants can fill these forms out on their own or with the help of a lawyer. There is a self-help kit for people doing this without help from a lawyer. Once the forms are complete they are filed with the court.
Anyone who has been served with a notice of the application, or anyone else who has a sufficient interest, can file an objection with the court. A written objection must include the reasons for an objection, and be served on the other interested parties.
Notice of the application to be appointed as a guardian or co-decision-maker must be served on any of the adult’s nearest relatives, unless they have consented to the application, and anyone else in a position of trust with the individual, for example, someone that holds a power of attorney or a proxy for health care decisions. Usually, the adult must be served with notice as well. However, if the court decides that this would be harmful to the adult, it may decide that serving the adult is not necessary.
The court will consider all of the information in the application, as well as any objection that has been filed. A court can hold a hearing with the parties present, if more evidence is needed. However, the court may decide to either make the appointment or reject the application based only on written evidence, such as affidavits and medical reports.
In deciding whether to make an order, the court will consider the physical, psychological, emotional, social, health, residential, vocational and economic needs of the adult. Less intrusive ways of support or assistance for the adult must be tried or at least fully considered. The court must be satisfied that an order appointing a guardian or co-decision-maker is in the best interests of the adult.
The court must also consider the suitability of the person applying to be a guardian. Things such as whether the person has a criminal record or a history of interpersonal violence and whether the person is capable of carrying out the duties are considered.
The court can make the order for an indefinite duration or have it subject to review within a certain period of time. For example, the court can consider a built-in review in circumstances where the adult’s condition may improve over time.