Mary Jane Saunders
MJ Saunders, Wills & Estates

My colleague Naomi Veniot wrote an earlier blog regarding the importance of a Power of Attorney.  Within that article she noted that without a Power of Attorney, if a person loses capacity a relative or friend may have to make an application to court to be given the authority to manage that person’s property. She was referring to a guardianship application under the Incompetent Persons Act.

If this type of application is necessary the current law requires that the person applying to be appointed as guardian provide the Court with the following documents:

  1. Affidavit of the Applicant;
  2. Affidavits of two medical practitioners giving evidence of the state of health of the individual; and
  3. Bond from a recognized surety company or an Applicants bond.

In addition to these filings, it is necessary to give formal notice of the proceedings to certain individuals and appear in Court to provide submissions to a judge as to why he/she should declare the individual to be incompetent and issue a guardianship order.

You are probably asking yourself what does all of this mean, and what it boils down to is a court application is a lot more work and significantly more expensive than a Power of Attorney.

My reason for addressing this topic now is that in June 2016 certain provisions of this legislation were declared invalid, but this declaration of invalidity was suspended for one year.  This means that the process and requirements for having a guardian appointed will change within the next year and my expectation is that the process and requirements for a guardian to be appointed will only become more stringent.

The Department of Justice is looking for feedback from the public as it works on its reform of the Incompetent Persons Act and an online survey is available at The deadline for completing the survey is November 30, 2016.