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

Neither of the married spouse's has an automatic entitlement to an appointment but they will be given every consideration by the court.

A spouse who has a record of abusiveness towards the adult will not be appointed.

Consider the facts in Re Davy. Laura Davy's mother applied for her guardianship, which was opposed by Laura Davy's husband. He wanted to be committee of his wife. The evidence revealed that Mr. Davy had been cruel towards his wife. He claimed to have an automatic right to committeeship. The court said no and appointed Laura's Davy's mother committee:

"The court has full jurisdiction to exercise its discretion to do what is most for the benefit of the lunatic. In 999 cases out of 1,000 it would probably be for the benefit of the lunatic that her husband should be appointed committee. But there may be exceptions."

Where the adult is female and, other things being equal, a female guardian will be preferred.

In a case dated 1731, Ex parte Ludlow, two cousins both petitioned to be named commmittee of Elizabeth Ludlow. The court named the female cousin committee because she:

"... being of the same sex, may probably better know how to take care of the lunatic and in this respect, be more tender of her...."

One of the most difficult decisions is where the court has competing applications by family members. In a novel approach, and relying on a section of the provincial statute (§18) that requires the committee to manage the estate of the patient taking into account the patient and the patient's family, British Columbia courts have used this to prefer that applicant that seems to have the support of the greater number of other family members.3

In Re Garrett-Jones, the grandson Charles wanted to be guardian but so too did the son, Maurice.

Master McCallum in Re Garrett-Jones concluded:

"From (§18 of the statute) ... one could infer that the interests of the patient and her family should be taken into account in the context of the patient’s overall circumstances."

Guardianship went to Charles. This is what the judge wrote in justifying his decision to give Charles guardianship over his grand-mother over the application of the adult's son:

"Maurice’s antipathy toward Charles is plain, Charles (at least in correspondence) does not demonstrate a similar antipathy."

In Re Atwal, Justice Ralph noted the "complex dispute between members of the patient’s extended family" then gave committeeship to the male applicant noting of the female petitioner:

"... there appears to be no positive relationship between the petitioner and the close family members of the patient.  The absence of such a relationship has the potential to indirectly affect the relationship of those family members with the patient, an outcome that is not in her interest."

In Re Dorothy Newton, Justice Lamperson upheld the committeeship of the public trustee:

"The test that is used in deciding who to appoint as committee is the best interest of the patient. Generally, this requirement is best met by appointing a competent and caring family member, who, as opposed to an institutional trustee, is more in tune with the immediate needs of the patient. Account must be taken of the fact that there may well be merit to Richard Newton’s assertion that the public trustee has not been particularly responsive to (the adult's) immediate personal needs, or attending to measures that must be taken to preserve her estate.

"Unfortunately, there is a major rift in the family. Each side questions the motives of the other. This court is not in a position to comment on the sincerity or integrity of any person involved in these proceedings, but given the division within the family, the appointment of (one step-son) or (the other) as committee, would inevitably invite further difficulties, acrimony and expense."

In Re Grav, the court gave some useful criteria when assessing competing applications from family members for the guardianship of an adult; in this case, Mr. Fritz Grav:

"In determining what is in Fritz’s best interests, I will consider ... who is most able to act in Fritz’s best interests; and what care is in Fritz’s best interests?"

The guardian should, preferably, live close to the adult. In Ex Parte Fermor (1821), the court:

"... expressed dissatisfaction with the Master's report on the ground that the persons named by him were all resident in the south of England and would probably never see either the lunatic or the estate.... and at the same time recommended it to the Master to approve of such proper person or persons ... whose place or places of residence in the county was or were of such as to admit of his or their frequently visiting the lunatic and inspecting the management of his concerns."

It is preferable - but not strictly necessary - to have a guardian who resides within the jurisdiction of the court making the guardianship order.

In Re Forrest, Justice Bence noted:

"Although it does not appear to be a mandatory one the general rule is that where possible the committee should be a resident of the jurisdiction where the appointment is made."

But in a 1992 case, Quinn v O'Neill, Justice Cunningham noted the principle that a non-resident ought not be appointed, particularly where, as in this case, there are next of kin resident in the jurisdiction. Cunningham refused to adopt that principle adding that those:

"... cases ... were decided in another era, at a time when communication and indeed travel were difficult and when many of today's technological advances were not even dreamed of. Furthermore, that argument fails, in my view, to consider the requirement of the committee posting a security bond...."

As with anything in this area of the law: check your statute books. In Manitoba, the 2010 Mental Health Act (§71) restricts the process to "any person resident in the province".