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Mental Health - Public Guardian and Trustee (PGT). Meherab v. Allstate Insurance Company
In Meherab v. Allstate Insurance Company (Div Court, 2024) the Divisional Court, in a case conference, explained some of the procedure for getting the Public Guardian and Trustee as substitute decision-maker for a potentially mentally incapable party:[9] Mr. Kabir contacted the Office of the Public Guardian and Trustee. A lawyer from the Office of the Public Guardian and Trustee filed a letter with the court. That letter explains in detail the legal test for the Public Guardian and Trustee to be appointed and the process that should be followed if Mr. Kabir wants to bring a motion to have the Public Guardian and Trustee appointed in this case. I encourage Mr. Kabir to have that letter translated and review it very carefully.
[10] On a motion to appoint the Public Guardian and Trustee, Mr. Kabir will have to prove that his son is “mentally incapable” of representing himself or retaining a lawyer to act for him on the appeal from the LAT’s decision. When deciding if Mr. Meherab is “mentally incapable”, this Court will decide if he is, because of a mental disability,a. unable to understand information that is relevant to making decisions about his case, or
b. unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his appeal. [11] It is not enough for Mr. Kabir to establish that his son has a mental illness or some other condition that is affecting his cognitive abilities. He must establish that because of a mental illness or other condition, Mr. Meherab is unable to make decisions about his appeal or unable to appreciate the consequences of his decision (or lack of decision) about his appeal. A person can be mentally capable to do some things and not others. And a person could be mentally incapable at one time but not at a later point.
[12] Mr. Kabir must file evidence about Mr. Meherab’s current condition and his current ability to make decisions and understand information about his appeal. That evidence must be in the proper form. Any evidence Mr. Kabir wants to rely on must be in an affidavit (i.e. a document that is either sworn or affirmed with relevant documents attached as exhibits).
[13] If Mr. Kabir wants to bring a motion to appoint the Public Guardian and Trustee to make decisions about Mr. Meherab’s appeal, he must serve and file his motion materials, including any affidavits he wants to rely on and a factum (i.e. written argument). Those materials must be served and filed no later than November 29, 2024. In addition to serving the motion materials on counsel for Allstate Insurance and the Licence Appeal Tribunal, Mr. Kabir must serve a copy of his motion materials on the Office of the Public Guardian and Trustee. He must also upload his motion materials to Case Center.
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