It is well established that the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) contains a prohibition provision preventing courts from appointing guardians when the need for decisions to be made can be met by an alternative course of action that does not require a finding of incapacity and is less restrictive of the alleged incapable person’s decision-making rights.
Ever apparent in the case law surrounding capacity and guardianship is the delicate balance between the alleged incapable person’s right to autonomy, dignity, and self-determination and the duty of the state to protect the vulnerable.
These issues came before the Court in the recent Application decision of D.R. v. A.R., 2026 ONSC 796.
Overview
In this application, the Applicants, in their capacities as attorneys for property for Ms. A.R., sought an order pursuant to the SDA declaring Ms. A.R. incapable of managing property, and an order appointing Alana Geller (“Ms. Geller”), a Chartered Professional Accountant, as Ms. A. R’s guardian of property. They acknowledged that Ms. A.R. no longer wished to have them act as her attorneys for property.
The issues in this application, heard by Justice B. Dietrich, were: (1) whether Ms. A.R. required a guardian of property and, if so, (2) who the guardian or guardians of property should be.
In the event Ms. A.R. was determined to lack capacity and to require a guardian of property, one of the Applicants, Mr. D.R., requested an adjournment of the application as it related to the appointment of a guardian to permit him to apply for an order appointing him as Ms. A.R.’s guardian of property.
Justice B. Dietrich concluded that she was not prepared to appoint a guardian of Ms. A.R.’s property because there was an alternative course of action which was available and less restrictive of Ms. A.R.’s decision-making rights.
At paragraph 96 of her Reasons for Judgment, Justice B. Dietrich wrote:
For the reasons that follow, I find that it is not required that I appoint a guardian of property for Ms. A.R. I am satisfied that the need for decisions to be made by her can be met by an alternative course of action that does not require me to find that Ms. A.R. is incapable of managing her property. This alternative course is less restrictive of Ms. A.R.’s decision-making rights than the appointment of a guardian.
Background Facts
Ms. A.R. and her husband, Mr. R.R., were married for more than 60 years. Throughout their marriage, Ms. A.R. and Mr. R.R. accumulated substantial wealth through their businesses and through property development. At the hearing of the application, Ms. A.R.’s assets included two residences in the City of Toronto, and real properties in Florida and Israel, as well as valuable shares in the family companies. Ms. A.R.’s interest in OT Inc., one of the family companies, was believed to be worth tens of millions of dollars.
In late August 2024, one of the Applicants and attorneys for property, Mr. J.U., became concerned about Ms. A.R.’s memory and her deteriorating health. The Applicants began acting as Ms. A.R.’s attorneys for property to sign documents on Ms. A.R.’s behalf.
In October 2024, Ms. A.R. retained her own counsel, Milton Davis (“Mr. Davis”). On December 9, 2024, Mr. Davis sent the attorneys for property a Notice of Revocation, ostensibly signed by Ms. A.R., which revoked the 2014 Power of Attorney from which their appointment derived.
Capacity Assessments
Justice B. Dietrich considered three capacity assessments: two prepared by Dr. Kenneth Shulman and one prepared by Dr. Richard Shulman.
In his first report, delivered on January 2, 2025, Dr. K. Shulman concluded that Ms. A.R. was “clearly incapable of managing her own property” and that she was extremely vulnerable to influence. Dr. K. Shulman’s report, however, did not opine specifically on Ms. A.R.’s capacity to revoke the 2014 Power of Attorney.
In his second capacity report, dated April 15, 2025, Dr. K. Shulman concluded that Ms. A.R. was capable of expressing specific wishes clearly and consistently, and that she was able to make decisions about her financial affairs with the assistance of lawyers and financial advisors.
Following his assessment of Ms. A.R. on August 13 and 15, 2025, Dr. R. Shulman concluded that despite her mild cognitive impairment, Ms. A.R. had the cognitive ability to process, retain, and articulate the relevant information for her to manage her property, but she required assistance to either plan decisions or carry out decisions.
Positions of the Parties
Analysis
Considering the two reports of Dr. K. Shulman and the report of Dr. R. Shulman cumulatively, Justice B. Dietrich concluded that both assessors agreed that Ms. A.R. had moderate cognitive impairment. However, despite this impairment, they each agreed that she had the cognitive ability to process, retain, and articulate the relevant information required to manage her property, but only with assistance. They also each agreed that Ms. A.R. had the capacity to retain and instruct counsel.
Justice B. Dietrich aptly noted at paragraph 104:
Ms. A.R.’s vulnerability and the duty of the state to protect her are critical considerations in this case. But so, too, are Ms. A.R.’s right to self-determination and autonomy.
Disposition
Based on the evidentiary record, including the reports of Dr. K. Shulman and Dr. R. Shulman, Justice B. Dietrich found that Ms. A.R. had the requisite capacity to make and revoke a Power of Attorney for property. She also found that Ms. A.R. possessed the capacity to retain counsel to assist her with legal decisions, including the appointment of attorneys for property.
At paragraph 126 of her Reasons, Justice B. Dietrich wrote:
In conclusion, the need for decisions to be made regarding Ms. A.R.’s property can be met by an alternative course of action to the appointment of a guardian. Accordingly, I do not need to find Ms. A.R. incapable of managing her property, and I do not need to appoint a guardian of property to act on her behalf. I decline to do so.
The application was dismissed.
Implications
The reasons for judgement in this case highlight an overarching principle that should be at the forefront of any applicant’s mind when it comes to seeking orders relating to the appointment of a guardian, namely, whether the need for decisions to be made can be met by an alternative course of action that is less restrictive to the alleged incapable person than the appointment of a guardian.
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