Guardianship enables parents to legally remain in caretaking role

By staff
Guardianship enables parents to legally remain in caretaking role - Kenneth C. Pope Law

In the final instalment of a two-part series, Ottawa disabilities and estate planning lawyer Ken Pope explains the process of applying for legal guardianship.

When a non-competent child turns 18, Ottawa disabilities and estate planning lawyer Kenneth Pope advises parents to seek legal recognition of their ongoing caretaking role through a guardianship application.

“Clients who seek guardianship from us are usually parents whose child with disabilities has just turned 18,” says Pope, principal of Kenneth C. Pope Law. “They’ve been the caretakers and the decision-makers for the child their whole life and now that the child has reached adulthood, they’re no longer regarded as the legal decision-maker.”

As the legal guardian of a non-competent individual, parents can make decisions and sign documents on their behalf, which is required for everyday affairs, such as signing a renewal for an Ontario Health Insurance Plan (OHIP) card.

More serious situations could involve making medical decisions on their behalf or protecting the child from being taken advantage of, Pope tells

Typically, Pope’s firm seeks a summary disposition in applying for guardianship. The process allows the application, which includes medical evidence of the child’s disability, to be reviewed by a judge without a hearing if it’s not contested.

“It’s a very straightforward scenario where parents who have taken care of a child their whole lives are enabled to continue making decisions for that child,” he says.

Seeking guardianship follows a clear process that involves the use of court-prescribed forms. All siblings and parents, even those not involved in guardianship, are required to sign off on the application. That shows the court the guardianship is not being contested and members of the family have knowledge of the situation and are on board with the application, Pope explains.

In preparing the guardianship application, he says families also begin the process of planning for the child’s future care needs.

Pope says that could involve putting a management plan and a guardianship plan in place that he reviews with the parent.

The management plan lists all the assets and properties the child has and how the guardian will manage those, including how that money will be invested and how it will be used, Pope says.

“The assets are not typically complicated, he says, and usually involve the investments made in the RDSP (Registered Disability Savings Plan),” he says. “So the management plan outlines how they will be maintained and how the ODSP (Ontario Disability Support Program) benefits will be used.”

The guardianship plan also includes information regarding the safety plans for that child, any extracurricular activities as well as intentions to maintain their health, Pope says.

“If the child has just turned 18, the parents should also have recently applied for the ODSP and should now consider Henson Trust provisions in their wills,” he says.

Click here to read part one on the reasons parents of non-competent children should consider legal guardianship.

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