See also Adult Guardianship: Patients Property Legislation.

For readability, this article has been spread-out over three web pages. This is page 1. Adult Guardianship: Who Takes Care of Granny? continues at page 2 and ends on page 3, at the end of which you will find the Reference section where all legal citations for all cases are given.

There was a time when the law took little heed of lunatics; known, from time to time, as fools, idiots, mad, insane, and even mentally retarded. Indeed, the authorities even stooped, for a time, to shipping the insane out on the next ship, to be dropped off at the first port of call (i.e. ship of fools).

But long behind us is the history of lunacy law or, skipping to the current politically correct term, of adult guadianship.

Now, the law has process and some fairness to what is admittedly is a difficult area of the law. What to do with the insane - no small problem with advancing medical techniques keeping people alive longer? We are all but a stroke away from being insane in the eyes of the law.

Once incapacity is proved, a court looks to someone to manage the person and the affairs of the insane. But the guardian of the person is not necessarily also the guardian of the estate (note that many - but not all - common law jurisdictions call the guardian appointed pursuant to adult guardianship order a committee). This is unusual but not that uncommon.

What is rare is for a court to allow a person of unsound mind to retain authority over his person or his estate, but to see the other committed to the authority of another. There is an old law report case from England, circa 1820, Re Fermor where the court committed a lunatic as to his person but allowed him to retain management of his estate! But these are the exception, not the rule (see, also, below, Re Cochrane).

RULE #1: BEST INTERESTS OF THE PATIENT

In spite of a simple, criteria - the best interests of the adult - sometimes, the most difficult decision facing the court is who to name guardian?

old gateIn Re McLaughlin, Justice Davey wrote:

"[T]his particular ... jurisdiction exists for the benefit of the lunatic and the guiding principle ... is what is most for the benefit of the unhappy subject of the application.

"The interests of persons alleged to be of unsound mind .. ought to be jealously protected against any attempts of designing people, or people acting innocently but mistakenly, to place either their persons or their property under restraint."

This best interests of the mentally incompetent person principle even "over and beyond the interests of the family and kin".1

In Barnhill, Justice Gillis wrote:

"The concern of the Court in making the appointment of a guardian should, in my judgment, in this case, be directed to the care and guardianship of the person of Dora Agnes Barnhill and the estate should be directed and used in a prudent way toward the keeping of her person in the most appropriate way for the remaining days of her life. The selection of a guardian will be made with that in mind."

In Re Pineo, Justice Spencer wrote:

"The choice of a committee must be based upon the best interests of the patient.  That will include a consideration of who best can deal with his financial affairs, nurture his estate and see that his income and estate are applied for his greatest benefit. The choice of committee of his person will include a consideration of who best can provide the love and support which he will need in his few remaining years."

In one 1833 Scottish case, Howden v Sibbald, 11 Shaw 561, the Court gave consideration to a plain letter that had been written by the adult to a friend.

NO DROP-DOWN LIST

The first place to look is within the relevant statute. If a list is set out therein, you need read no further; that is your list.

 Alberta's statute offers practical guidance at §8(1):

"The Court may appoint as a guardian of a dependent adult, any adult person who consents to act as guardian and in respect of whom the Court is satisfied that the person will act in the best interests of the dependent adult, ... will not be in a position where the person’s interests will conflict with the dependent adult’s interests, and ... is a suitable person and is able to act as the guardian of the dependent adult."

Still, no drop-down list; no statutory criteria.

Or, perhaps, there is no list in the dependent adult statute but a similar list might exists. For example, in British Columbia, there is no priority list in the adult guardianship statute. Indeed, the statute says :"the Attorney General, a near relative of a person or other person may apply to the court" but then adds "the court may appoint any person to be the committee of the patient"! But there is a priority list in the emergency health care statute as well as the estate administration statute.

The 2010 Quebec Civil Code, at §269, allows the adult of unsound mind to make, himself, the dependent adult application the point of which would be to nominate someone to stand as guardian:

"The person of full age himself, his spouse, his close relatives and the persons connected to him by marriage or a civil union, any person showing a special interest in the person or any other interested person ... may apply for the institution of protective supervision."

RULES TO LIVE BY

Here are some rules to go by (we will refer to the person incapable of managing their person or their affairs as the "adult"):

A real person will be preferred to an institutional committee such as a trust company or the public trustee, the latter, a last resort.

In Alberta v Stirling, the Public Trustee opposed the application made by family members. The Court preferred the children of the dependent adult to the institutional candidate for guardianship:

"[T]he Public Trustee is to be considered when no other person is willing, able or suitable. There is an implicit preference for other trustees. ... [T]here being no factors here which would prefer one applicant over the other, preference should be given to the family applicants."

In Re Pollen, Justice Saunders wrote:

"The test for choice of committee is the patient's best interests.

"In most circumstances a competent family member who presents a picture of caring and affection for the patient will be preferred to a public official such as, here, the Public Trustee, for the very reason that a person with a familial and caring connection is likely to act in the patient's best interests and with more insight into the options which are most compatible with the patient."

Note that in Re Lawrence, the public trustee was preferred because of intense conflict between family members (see below). In another case, Re Isaacson, the public trustee was preferred to the father of the adult but the judge, in her reasons, gave no rationale for her decision other "the best interests of the patient" and than she could not abide by the son's wishes to have his father appointed as he was "greatly influenced by his father".

To the greatest extent possible, a committee should be appointed from the relatives of the adult.

In Le Heup, Justice Eldon stated:

"The governing principle has always been, that, if such a person can be found, the influence of the family, which ought to be confined within its own circle, is not to be transferred to a stranger."

More recently, these words from Justice Lowry of the British Columbia Court of Appeal in Re Neville Calvin Watson:

"In appointing a committee the court must be governed by the best interests of the patient. The authorities recognize the desirability of appointing a family member over an outsider."

In the Substitute Decision Act of Ontario, the statute requires at §24(5), that the Court consider the:

"... closeness of the relationship of the proposed guardian to the incapable person."