Frequently asked questions
What do you mean by "guardianship"? I'm not talking about a minor!
When we are talking about guardianship, we are referring to becoming the guardian of a person who is 18 years of age or older in Ontario who, legally, cannot make their own decisions. Guardianship is a way of protecting a vulnerable person (such as someone with a serious mental illness, dementia or a developmental disability).
What types of guardianship are there? Do I need both?
There are 2 types of adult guardianship in Ontario. One type is guardian of property and the other type is guardian of personal care. It is not always necessary to seek both types of guardianship. Not to worry, we will advise you on which type you need in your circumstances since one size does not fit all.
What does a guardian actually do?
A guardian of property deals with money. They might sell a house, pay the bills or authorize payment of a retirement home or long-term care facility. A guardian of personal care is asked to consent to medical decisions and to consent to the incapable person going into long-term care, should that issue arise. They are also responsible for making decisions relating to personal assistance services, nutrition, shelter, clothing, hygiene and safety (as applicable). Practically speaking, if you are someone's guardian you will likely also become their advocate and their caregiver. In addition to making decisions, a guardian must also keep very specific records of those decisions.
Who can apply to be a guardian?
Almost any adult can apply to be a guardian, although someone who is not a relative likely will have to apply through the court system. And that's fine - we can help you do that. Realistically, if you are thinking about guardianship you should have a close relationship with the incapable person and be able to demonstrate why you are trustworthy and responsible.
How long does it take? And what will happen if I delay?
The guardianship process takes at least several months. This is why it is best to get started as soon as possible.
If your loved one needs a guardian and you delay seeking guardianship, it is possible they will suffer financial consequences. For example, they may be vulnerable to financial exploitation. We had a client whose mother almost sold the family home at a very low price simply because an agent asked her to; she also almost lost her heat during the winter because no one was paying the bills. Don't let that be you.
Can I get paid to be a guardian?
Yes. Usually guardians are relatives who take on the role out of the goodness of their heart, but it is possible to get paid for being a guardian. The law sets out how much a guardian can make - it is tied to how much money is being managed and work is involved for the guardian.
Is it normal to feel conflicted about applying for guardianship?
Yes! It can be an uncomfortable role reversal, especially if you're seeking guardianship over a parent. With dementia in particular, you may find you are literally acting like a parent - keeping the house safe, diverting their attention, and even changing diapers. Applying for guardianship is another way to take care of your loved one and ensure their needs are met. Don't feel guilty - it is in their best interests (and if it is not - we will tell you that too and explore alternatives).
How much does it cost?
There are different ways to become a guardian. We start the process with an advice meeting. For some people, a 1 hour meeting is literally all they need and the cost is just a couple of hundred dollars. In those cases we often present alternatives to guardianship that will work just as well. For others, we have no choice but to go to court. Guardianship via court will cost several thousand dollars, and likely more if there is family conflict (something we strive to avoid!). In some cases we are prepared to offer flat fees based on the stage of the application. In all cases we will seek to get you reimbursed from the incapable person's funds; and when there is no family fighting, this is typically not an issue.
I'm having a conflict with my relatives. Will guardianship help?
Family conflict is difficult and painful. Sometimes guardianship can put an end to the conflict because it forces everyone to craft a specific plan tailored for the incapable person's best interests. And it leads to a final determination once and for all about who gets to make certain decisions. Finally, being a guardian is a significant responsibility and there are legal consequences if the duties of a guardian are not upheld. So once someone is a guardian, there is formal accountability in place - and a formal complaints process.
Just talk to us
It’s easier than you think...
We will answer all your questions, and walk you
through the entire process.
I’m Lisa Feldstein.
I am a health lawyer in Ontario and an Adjunct Professor at York University (I teach Health Care Law). My practice has been focused on family caregivers since 2013. Before that, I was a lawyer for the health sector. I've helped numerous clients seek guardianship. I have literally seen guardianship change lives. We had one client whose relative was constantly in and out of psychiatric facilities, but since we helped them obtain guardianship there have been no hospital admissions in several years.
I do A LOT of public speaking and publishing. You can read more about that here
. Want to hear me speak about consent and capacity law? Watch a video here
I am also joined by a wonderful colleague Priya Somascanthan; you can read more about her here
Lisa has been widely published and interviewed in the media, including in the Canadian Journal of Family Law, CTV, and the National Post.The feedback Lisa most loves hearing from clients is that she made the process feel simple.
Lisa Feldstein Law Office can draft surrogacy agreements and apply for declarations of parentage on behalf of intended parents. Please see our Reproductive Law page for more information about our surrogacy law services.
Is surrogacy legal in Canada? Can a surrogate be paid for carrying someone else’s baby?
The Assisted Human Reproduction Act (“AHRA”) does not prohibit surrogacy; thus, surrogacy in Canada is legal. What is not legal is paying a woman to act as a surrogate (often referred to as “commercial surrogacy”). This means that if a woman chooses to become a surrogate mother, it must be an altruistic act and not financially motivated. Commercial surrogacy is permitted in other parts of the world. Although a surrogate in Canada cannot be paid, she can be reimbursed for any out-of-pocket expenses.
Who is allowed to be a surrogate?
There is no list that sets out who legally is and who is not allowed to be a surrogate; however, there is an age requirement.
Surrogates must be at least 21 years of age. It is against the law to counsel or induce a female person to become a surrogate mother; or perform any medical procedure to assist a female person to become a surrogate mother, if they know or have reason to believe the woman is not yet 21 years old.
It is noteworthy that the law does not expressly prohibit a woman who is 20 years of age or younger from acting as a surrogate. This is likely the case to avoid penalizing the young woman, who may have been coerced into acting as a surrogate.
There would also be significant issues if there were concerns about a surrogate’s mental capacity to enter into a surrogacy arrangement or to provide consent to the assisted reproductive technologies.
Beyond who is legally allowed, there are also characteristics that make some women better surrogates than others. For example, women who have experienced pregnancy, completed their families, and have a supportive partner.
What is the difference between a surrogate mother, traditional surrogate and gestational carrier?
There are two types of surrogacy: (1) traditional, and (2) gestational.
Traditional surrogates are women who are genetically related to the child they are carrying. They are impregnated and carry the child with the intention of having another person care for the child as a parent upon birth. Sometimes they are referred to as a surrogate and egg donor.
Gestational surrogates are those who carry the child in their wombs but are not genetically related to the child. This means that another woman's eggs are used for conception (from an egg donor or the intended mother). In such cases the embryo is created outside the body and transferred to the surrogate's uterus shortly after conception.
The term “surrogate mother” is used as an umbrella term and includes both traditional and gestational surrogates. The term “carrier” is often used by professionals in the fertility industry instead of “mother” to avoid suggesting that the woman carrying the child is a parent.
Women who are impregnated with donor sperm who are genetically related to the child and who intend to raise the child themselves are not considered surrogates – they are simply called the mother. In female same-sex relationships the partner who is not carrying the child is often called the “co-mother”.
What is the legal process for surrogacy in Ontario?
There are two main legal elements to the surrogacy process in Ontario: (1) the agreement and advice, and (2) the declaration of
At the beginning of the surrogacy process the intended parents meet with a lawyer to discuss the details of the arrangement. The lawyer for the intended parent(s) will give legal advice and draft a surrogacy agreement. If there is a known egg or sperm donor, the lawyer for the intended parent(s) will also draft a donor agreement. The surrogate and donor(s), if applicable, then seek their own lawyers and obtain independent legal advice (“ILA”). The lawyers speak and, in consultation with their clients, finalize the agreement. It is very important that these steps happen before the embryo is transferred (or in-vitro fertilization occurs, in the case of donor sperm or egg).
The second legal element in the process is called a “declaration of parentage”. This is the part of the process that ensures the intended
parents are legally recognized as the parents of the child (as opposed to the surrogate). Although much of the paperwork is completed prior to the birth, the parties cannot sign until after the child is born. The lawyer will send out documents for signature and the originals are returned to the lawyer. Once the paperwork is assembled the lawyer will file the paperwork in court. At a later date the lawyer will appear before a judge and obtain a court order declaring the intended parents to be the legal parents of the child. The intended parents can then use the court order to obtain a birth certificate in Ontario.
**Please note that effective January 1, 2017, most intended parents will be able to avoid the declaration of parentage provided they take certain steps in advance. In most cases parents whose baby is born in Ontario via surrogacy will be able to register the baby’s birth shortly after the birth without a court order.
At Lisa Feldstein Law Office we also assist clients with communicating arrangements to the hospital to ensure the process goes smoothly, revising birth plans, assisting with birth registrations and other aspects of the process. We are “on call” around the time of the delivery to answer questions from clients and hospital staff.
For those who are more visual, below is an overview of the surrogacy contract process.