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| Charles Wagner |
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| Adin Wagner |
In the absence of the grantor’s capacity, the Act provides a framework to terminate the governing POA and appoint in its place a guardian of property and a guardian of person.
As always in law, the broad categories outlined by the legislation manifest in countless real-world scenarios. Here are a few of the more common ones:
Personal injury lawyers often come across this situation when a victim of a catastrophic accident does not possess the capacity to initiate legal proceedings or manage their property. In the absence of a POA, personal injury lawyers will often retain counsel to commence a guardianship application to appoint someone who can provide instructions, litigate and negotiate settlements on the incapacitated victim’s behalf. Retaining experienced counsel prevents the delays and expense that sometimes occurs when someone unfamiliar with the Act has to navigate it.
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When judges hear these sorts of cases, they often remind the litigants that fairness to the incapable person’s children (who are often the litigants) is not their concern. The only concern under the Act is the best interests of the incapable person. As Justice David Brown said in Abrams v. Abrams, 2010 ONSC 1254:
Proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus — the assessment of the capacity and best interests of the person whose condition is in issue. This court, as the master of its own process and as the body responsible for protecting the interests of the vulnerable identified by the Legislature in the SDA, should not and will not tolerate family factions trying to twist SDA proceedings into arenas in which they can throw darts at each other and squabble over irrelevant side issues.
There are some wonderful continuing legal education (CLE) materials that assist novice lawyers in the preparation of court documents necessary for guardianship applications. But what is often most helpful is taking the opportunity to speak with lawyers who have had carriage of these files and are willing to share their experiences and practical tips.
A lunch and learn seminar on guardianship applications will be hosted by Wagner Sidlofsky LLP on Nov. 4, 2025, starting at 12 p.m. The presenters plan to review who the Act says may bring the application, the grounds for granting guardianship, and the practical aspects of preparation of a guardianship plan and management plan. Experienced lawyers will review different approaches and strategies and provide their insights on what to consider in different circumstances. It is an opportunity for lawyers to collaborate and canvass different strategies employed when litigating guardianship issues. For more information and to register, please access this link.
Charles Wagner is designated as a certified specialist in estates and trusts law by the Law Society of Ontario and a partner at Wagner Sidlofsky LLP.
Adin Wagner is a lawyer at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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