By: Lola Adebogun and Taylor Moroz

Life doesn’t always go as planned. Sometimes, a loved one may lose the ability to make important decisions about their health, finances, or daily life because of an illness, accident, or disability. When this happens, families often ask: How can I make sure my loved one’s needs are met and their best interests are protected?

One option is guardianship. Guardianship is a legal relationship created by a Court, where one person (the guardian) is appointed to make decisions for another person who has been found incapable of making decisions for themselves. Depending on the circumstances, the Court may appoint one, multiple and/or alternative guardians.

Types of Guardianship

There are two main kinds of guardians. A property guardian manages financial matters, such as paying bills, handling bank accounts, and overseeing investments. While a personal guardian makes decisions about health care, medical treatments, living arrangements, and daily life needs. In many situations, families apply for both, which helps avoid gaps in authority and gives clarity to banks, hospitals, and care facilities. You can also be appointed as a guardian on a temporary or permanent basis. If you are appointed on a temporary basis you will be the guardian for a period not exceeding six months.

Who Needs Guardianship?

Guardianship usually becomes necessary when someone is no longer able to make personal or financial decisions and does not have a valid Power of Attorney in place. This can happen when a person has lived with a lifelong disability, suffers from an acquired disability such as a brain injury, or develops a progressive condition like dementia.

Courts look for specific factors before granting guardianship. The adult in need of guardianship must be of legal age, have undergone a capacity assessment, and be vulnerable due to illness or disability. The Court also considers whether there are less-intrusive ways of providing support, and whether the adult ever had the capacity to create a Power of Attorney.

How Courts Decide

Before the Court in Saskatchewan can appoint a guardian or co-decision-maker for an adult, it must be satisfied that the person truly lacks the capacity to make certain decisions. Under the Adult Guardianship and Co-decision-making Act, this determination requires a formal assessment of the adult’s ability to understand and appreciate decisions about their personal and financial affairs, as well as the likelihood that their capacity may change over time. The Court may direct the adult to undergo an examination by one or more qualified health professionals, and at least two professional assessments must be provided. These assessments must be completed by professionals such as physicians, psychologists, nurses, occupational therapists, social workers, or speech-language pathologists.

The Role of a Guardian

Guardianship is more than decision-making; it is a legal duty. A guardian is considered a fiduciary, which means they must act honestly, reasonably, and always in the best interests of the adult. They are expected to keep records, complete annual accounting, include the adult in decisions as much as possible, consult supportive family and friends, and respect the adult’s prior wishes and values.

Because of the trust involved, the Courts require guardians to provide a bond and or obtain consent of all interested parties dispensing with the need for a bond. Even with consent, the Court can still seek a bond, it is up to their discretion.

Fees for Decision Makers

When the Court appoints a guardian or co-decision-maker under the Act, it recognizes that these roles can involve significant time and responsibility. To account for this, the law allows decision-makers to receive payment for their services, but only under specific conditions. A personal decision-maker may receive a set amount from the adult’s estate, as ordered by the Court, to help cover the adult’s shelter, care, and support. They can also charge a fee for their work, but only if the Court has approved it or if it aligns with the Regulations fee schedule. All fees are paid out of the adult’s estate, ensuring that the cost of support comes from the resources intended for the adult’s well-being.

The Regulations to the Act outline what these fees can look like in practice. Property guardians, for example, may charge 2.5% of all funds they collect or manage on behalf of the adult each month, such as income, pensions, or other payments received into the adult’s estate, and an additional 2.5% of the amounts they pay out from those funds to cover the adult’s expenses or obligations.

Property co-decision-makers, and temporary property guardians may charge a $15 hourly rate for managing the adult’s personal or financial affairs when no specific court order sets the fee. If more than one guardian or co-decision-maker is appointed, the fees are shared equally, as agreed between them, or as directed by the Court. These rules help ensure that compensation for decision-makers remains fair, transparent, and proportionate to the important duties they perform on behalf of vulnerable adults.

How to Apply

Applying to become a guardian or co-decision-maker in Saskatchewan involves a structured legal process, and the exact documents required can vary depending on the type of application.  For a property and personal guardian application, applicants must complete the prescribed application form (Form A), serve it on all interested parties, and swear an affidavit (Form B). They must also obtain two medical assessments showing the adults incapacity, prepare a statement of inventories outlining the adult’s assets, secure a bond or obtain consent and provide a draft court order. These steps ensure the Court has all the information needed to make an informed decision.

Serving the application is an important step. Copies must be provided to the adult, their nearest relatives (unless consent has already been given), any current or proposed personal or property decision-makers, attorneys under a power of attorney, proxies under a health care directive, supporters nominated under personal care home regulations, trustees managing the adult’s financial benefits, and the public guardian and trustee. While applicants are not required to search for unknown individuals, notifying all known parties helps ensure transparency and protects the adult’s rights. Because requirements differ depending on whether the application relates to personal care, property, or both, it’s important to understand which documents and notices apply to your situation.

Key Takeaway

Guardianship is an important safeguard for adults who can no longer manage on their own. It provides clarity and legal authority for families while ensuring that the vulnerable person’s rights and dignity remain at the forefront. Although it carries significant responsibilities, guardianship can bring families peace of mind knowing their loved one is protected.

If you’re considering guardianship for someone you care about, the earlier you seek advice, the smoother the process will be. Procido’s Wills and Estate Group has experience guiding families through guardianship applications and related estate matters.

Let us help you protect what matters most. Contact our team today to discuss your options and take the first step toward peace of mind.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice. Contact Procido LLP (www.procido.com) if you require legal advice on the topics discussed in this article.