The Supreme Court of Newfoundland and Labrador has jurisdiction over the appointment and supervision of guardians of the estate and the person of those who are under a legal disability (minors and mentally disabled persons).
Process Overview
Guardianship
A Guardian is a person appointed by the Court that has the legal authority to make certain types of decisions on another person’s behalf, where that person is not competent to do so himself or herself. Guardians are required to make such decisions in the best interests of the individual.
There are two types of persons who may be subject to a guardianship order. The first is minors (persons under the age of 19). The second is mentally disabled persons. A mentally disabled person is one who has diminished capacity or is incompetent because of a mental illness or other medical condition or simply because of advanced age. In such cases, it may be necessary to appoint someone to make decisions with respect to a mentally disabled person because they may not be able to communicate their wishes.
Applying for Letters of Guardianship of the Estate of a Minor
A grant of Guardianship of the Estate of a minor is applied for when a person under the age of 19 years needs help to make decisions with respect to their financial affairs. For example, a grant may be made if there is an infant trust settlement after a motor vehicle accident or medical malpractice action. It is the responsibility of the person appointed to act in the best interests of the minor. This type of grant does not allow the guardian to make decisions about the health and welfare of the minor.
The forms required for such an application are set out in the “Forms” section below.
It is common for the Public Trustee to be appointed guardian of the estate of a minor. When the Public Trustee is appointed, the Guardianship Bond and Oath of Guardian documents are not required.
Applying for Letters of Guardianship of the Estate of a Mentally Disabled Person
A person can be given guardianship of a mentally disabled person’s estate when a person, for a variety of reasons, is unable to make decisions with respect to their financial affairs. There are two types of authority: under an enduring power of attorney or by a grant of the court. Both of these documents grant a person permission to deal only with the financial affairs of the mentally disabled person.
The Enduring Powers of Attorney Act is the statute that deals with enduring powers of attorney. This advanced planning tool allows a person to appoint a guardian before he or she is incompetent to do so. To create an enduring power of attorney, the person granting the power over his or her estate must be competent when it is signed. Some helpful information is found in the booklet Seniors and the Law published by the Public Legal Information Association of Newfoundland and Labrador. You may also wish to speak to lawyer about preparing an enduring power of attorney.
A grant of guardianship of the estate of a mentally disabled person requires an application to the court under the Mentally Disabled Persons’ Estates Act. The forms found below may be helpful in preparing that application. Note that an affidavit from a medical doctor is required to prove that the person is mentally disabled.
The forms required for such an application are set out in the “Forms” section below.
It is common for the Public Trustee to be appointed guardian of the estate of a mentally disabled person. When the Public Trustee is appointed, the Guardianship Bond and Oath of Guardian documents are not required.
Applying for Letters of Guardianship of the Person of a Mentally Disabled Person
When a mentally disabled person is unable to make decisions with respect to their health, medical care and treatment, another person can be granted the authority to make decisions on his or her behalf. The Advance Health Care Directives Act allows someone to appoint a substitute decision maker while they are competent. The person granting the power over his or her person must be competent at the time the advance health care directive is signed. If a person is not competent and no substitute decision maker has been named, that Act also sets out a list of persons who can step into the role. An advance health care directive does not give authority to the person to deal with the financial affairs of the mentally disabled person. Some helpful information is found in the booklet Seniors and the Law published by the Public Legal Information Association of Newfoundland and Labrador. You may also wish to speak to lawyer about the Advance Health Care Directives Act and preparing an advance health care directive.
Although uncommon, the court may grant guardianship over the decisions relating to the health and welfare of a mentally disabled person. Among other things, the application to the court must set out the reasons why the application is being made and an affidavit from a medical doctor is required to prove that the person is mentally disabled. For more information, it is recommended that you consult the case of A.A.(Re), 2019 NLCA 7.
The Court is in the process of developing documents for use in preparing Petitions to be appointed as a Guardian of the Person of a Mentally Disabled Person. These applications are complex and it is recommended that you seek legal assistance in preparing your application.
Applying for Letters of Guardianship of the Person of a Minor
A grant of Guardianship of the Person of a minor is applied for when a person under the age of 19 years is not able to make decisions with respect to their health or medical care and treatment. It is the responsibility of the person appointed to act in the best interests of the minor. It does not give the guardian authority to make decisions with respect to the financial affairs of the minor.
The application to the court must set out the reasons why the application is being made. For more information, it is recommended that you consult the case of A.A.(Re), 2019 NLCA 7.
The Court is in the process of developing documents for use in preparing Petitions to be appointed as a Guardian of the Person of a Minor. These applications are complex and it is recommended that you seek legal assistance in preparing your application.
Relevant Statutes
A complete list of the Statutes of Newfoundland and Labrador may be found on the House of Assembly’s website. Links to some acts commonly referenced in guardianship proceedings are included below:
Rules of Procedure
Rule 56 of the Rules of Supreme Court, 1986 governs the procedure in guardianship matters before the Supreme Court of Newfoundland and Labrador. You may also have to consult other rules in the Rules of the Supreme Court, 1986, if a matter arises that is not dealt with in Rule 56.
Practice Notes
The Court issues practices notes, which may affect how the rules are interpreted or applied. The official versions of the Practice Notes, issued pursuant to Rule 4.04 of the Rules of the Supreme Court, 1986, are published in the Newfoundland and Labrador Gazette. The following Practice Notes may apply to your estate or guardianship matter:
Applications to Appoint the Public Trustee (P.N. No. 2020-01)
Other Practice Notes, applicable to civil proceedings generally, may also apply to your matter. There is a complete list of these here.
Forms
The Rules of the Supreme Court, 1986, include a number of forms that must be used. Rule 4.01(1) provides that the forms appended to the rules shall be used where applicable with such variations as the circumstances of the particular proceeding require. The official versions of the forms are found on the House of Assembly’s website. Below, you will find fillable versions of forms that are often used in Guardianship proceedings for your convenience. Depending on the nature of your matter, you may have to use other forms applicable to civil proceedings generally. Those forms may be found here.
IMPORTANT NOTES:
*All original signatures must be in BLUE INK.
*All documents must be single-sided.
*To ensure your web browser is loading the most recent version of forms on this website, please refresh your browser by hitting the Shift + F5 keys after opening a form.
To make an application to be appointed as the Guardian of the Estate of a Minor, the following documents are required (note that all Schedules must be initialed by the Applicant and the Person taking the Oath):
| Petition (choose the applicable Petition form)
Petition – Guardianship of Estate of Minor Petition – Guardianship of Estate of Minor, Public Trustee Appointed |
|
| Affidavit of the Petitioner | PDF Version |
| Inventory and Valuation of the Property of the Estate | PDF Version |
| Oath of Guardian (not required where the Public Trustee is being appointed) | PDF Version |
| Bond of Guardian (not required where the Public Trustee is being appointed) | PDF Version |
| Order (choose the applicable Order form)
Order appointing Guardian Order appointing Public Trustee as Guardian |
The following additional documents may also be required, depending on the applicable circumstances:
| Consent | PDF Version |
| Affidavit to Dispense with Bond | PDF Version |
| Consent to Dispense with Bond | PDF Version |
To make an application to be appointed as the Guardian of the Estate of a Mentally Disabled Person, the following documents are required (note that all Schedules must be initialed by the Applicant and the Person taking the Oath):
| Petition (choose the applicable Petition form)
Petition – One Petitioner Petition – Two Petitioners |
|
| Affidavit of the Petitioner | PDF Version |
| Affidavit of Physician | PDF Version |
| Inventory and Valuation of the Property of the Estate | PDF Version |
| Oath of Guardian (not required where the Public Trustee is being appointed) | PDF Version |
| Bond of Guardian (not required where the Public Trustee is being appointed) | PDF Version |
| Order (choose the applicable Order form)
Order – One Petitioner Order – Two Petitioners |
The following additional documents may also be required, depending on the applicable circumstances:
| Consent | PDF Version |
| Affidavit to Dispense with Bond | PDF Version |
| Consent to Dispense with Bond | PDF Version |