Does my child need a Guardian?

I spoke at an event hosted by the Developmental Service Ontario (DSO) of Central West region for parents with a dependent child or adult. It was well attended with many questions at the end of the presentations. One theme was the issue of guardianship. In speaking with parents and drawing on my experiences, there is much confusion regarding guardianship. In this and the next few blog posts, I want to concentrate on the issue of guardianship.

What is Guardianship? In Ontario, guardianship of a child under 18 is viewed as two separate issues: guardian of the person (which is known as custody) and guardian of property. A parent is the guardian of the child but is not automatically guardian of property. In a Will the parent appoints a person or persons to be the child's guardian. (This is a very good reason to have a Will.)

When children reach the age of majority (in Ontario it is 18), they are entitled to make decisions independent of their parents. When my daughter turned 18 she began having appointments with her medical doctor. I was not allowed to participate in the discussion. Her GP explained that I could not be involved because my daughter was legally capable of making decisions as an adult. Unless my daughter was assessed as being “mentally incapable” she had the legal right to make decisions.

Every person, regardless of ability, is presumed to be capable. As parents or caregivers of dependent children and adults, we are faced with a dilemma; while we want our children to exercise their autonomy we may not want them to make decisions without our support or guidance. What can we do in these instances?

The law in Ontario has two types of substitute decision makers. The first is appointing an “attorney” under a Power of Attorney for Property and Person Care. The individual signs the Power of Attorney granting the attorney authority to make decisions according to the terms in the legal document. The second type of substitute decision maker is a “guardian”. If the individual is not capable of appointing someone to act as the attorney, a guardian can be appointed.

In the next few blogs, we will examine who can sign a Power of Attorney and its benefits. Later we will examine how a guardian is appointed for a dependent adult.