"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Wednesday, September 26, 2007

Legal Guardianship - The Process [Part II]

Update: The Nova Scotia Supreme Court has recently released new Civil Procedure Rules. As their name implies, these are the procedural rules that govern lawyers' applications to the court. Of particular interest to this post is C.P.R. 71, concerning Guardianship.

I know some parents have been considering the advisability of bringing such an application on their own, without hiring a lawyer. They would be well-advised to study this Rule (as well as the other Rules it references) as it will govern their appearance in court. One nice change under the Rules is that And although I am not 100% clear on the issue, reading this Rule, I would say that it may well be that now only one court appearance is required as opposed to the two appearances formerly required, as set out below. Which might definitely makes the whole process more parent friendly.

However, that could easily be checked by contacting the Court Administration Office (sometimes called Prothonotary's office) at the Supreme Court Justice Centre located nearest to you. A self-represented litigant would also be well-advised to review this page of tips before proceeding.

In Part I, we talked about why you might want to apply for guardianship of your family member with a disability. We will now look at the process a person would go through to make such an application.

The Incompetent Persons Act requires proof of two things to have a guardian appointed; namely
  • that the adult has a mental "infirmity" and

  • that as a result of this "infirmity", the adult is "incapable of managing their affairs".
The procedure for appointing a guardian involves two court applications:
  1. An application to the court seeking a date for the actual guardianshp hearing.
  2. The actual court hearing in which the court will decide whether or not to grant a guardianship order.

First Court Application
The adult who is thought to be in need of a guardian does not needs to to notified of the first application. However this first The application will have to be supported by sworn or affirmed statements (called affidavits) of two medical doctors who are able to swear that, as set out above, the adult has a "mental infirmity" and, as a result of that infirmity, is incapable of managing their affairs.
Clearly, these medical practitioners must have the necessary knowledge of the adult to be able to make these statements. Generally, this might be the adult's family physician and another doctor who specializes in the area of the adult's disability. Obviously, if the adult regularly sees a specialist or there is one already knowledgable as to their condition (ie. neurologist, psychiatrist), this would be the appropriate doctor to choose. Other times this may mean searching for another family doctor who is either familiar with the adult and their condition or is willing to step forward, meet with the adult, review medical records (as necessary) and swear the required affidavit.

As a note of caution, remember that, unlike a psychiatrist, a psychologist is not a "medical practioiner" as required under the Act and thus cannot swear the required affidavit, no matter how familiar they may be with the adult and their conditon.
These affidavits, together with other documents, are sent to the Nova Scotia Supreme Court with a request for a hearing. It is at the hearing of this first application that the date will be set for the second hearing.

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4 comments:

Anonymous said...

And of course legal guardianship will be required in many cases to be able to set up an RDSP. We're going to see an increase in these applications, prior to RDSPs there weren't a lot of motivating reasons to spend money on the application until some emergency happened.

Best, Ken Pope

MMC said...

Absolutely.
Which I actually think is both a good and a bad thing.

Too many parents haven't seen guardianship as an issue whereas I see it as an insurance policy ... you hope you never need to use it but, push comes to shove, you will be awfully glad to have that piece of paper.

The downside though is the cost; it's very difficult for the average family to afford. Although I have a few ideas percolating at the moment around that issue, at least here in Nova Scotia, which I hope to be in a position to post on soon.

Thanks for the comment, Ken.

Anonymous said...

Michelle I'm doing a number of guardianship applications now due to the RDSP issue, and I've set up an in house manual on how to do this work in Ontario. You said you were working on one for NS. Want to trade?

We didn't get down to NB to the cottage this year but we sent my son, 10 tomorrow, and a UM,unaccompanied minor which he enjoyed immensely on Porter. His gparents picked him up and went back to the cottage on Caissie Cape north of Shediac.

Please reply to kenneth.pope@on.aibn.com

Best, Ken

Best, Ken

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