A person needs a guardian or co-decision-maker if he or she is 16 years of age or older and lacks the capacity to make financial or personal decisions. A person lacks capacity if he or she cannot:
- understand information relevant to making a decision; and
- appreciate the reasonably foreseeable consequences of making, or not making, a decision.
A lack of capacity may arise for a host of reasons including, but not limited to, intellectual disability, mental illness, dementia, brain injury, and addictions. Only a judge can appoint a guardian or co-decision-maker for a person who lacks capacity.
In order to determine whether a court appointed adult guardian is necessary, the following questions should be considered:
- What kinds of decisions need to be made to meet the adult's personal and financial needs?
- Is the adult able to understand the information needed to make decisions?
- Does the adult understand the consequences of the decisions that he or she makes?
- Does the adult consistently make decisions that result in harm to his or her personal or financial welfare?
- Is the adult at risk of being taken advantage of?
- Can the adult look after his or her day to day needs such as dress, diet and personal care?
- Are the adult's living arrangements suitable for his or her needs?
- Is the adult able to give informed consent for health care treatment?
- What support does the adult have to assist in making appropriate decisions?
- What property does the adult have?
- What is the adult's source of income and can that income be managed in some other way? (i.e. Can payments from Saskatchewan Social Services, Old Age Security or Guaranteed Income Supplement be paid to a trustee?)
The capacity of the adult should be assessed. If an application is made to the court for guardianship or co-decision-making, at least two assessments will be required. The two assessments must be performed by qualified professionals such as a doctor, nurse, occupational or physical therapist, social worker, speech therapist or psychologist.
If the adult is receiving services from an agency such as home care or health services or they are in a long-term care residence, the person applying to be a guardian or co-decision-maker may be able to have someone from that agency make an assessment.
The person applying to be a guardian or co-decision-maker should take cues from the information in the assessments when considering what type of decision-making authority to request from the court and its scope. Does the adult need assistance with decision-making or someone to assume control of decision-making? Does the adult need assistance with decision-making or someone to assume control of decision-making in relation to personal matters, financial matters or both?