Citizenship: Guardianship

This section is about individuals who cannot act on their own behalf in the citizenship process because of a mental disability.

The citizenship officer must be confident that the person applying for citizenship understands the significance of what they are doing. If this is not certain, another person must apply on behalf of the applicant. The citizenship officer must be convinced that the person applying on behalf of the applicant is acting in the best interest of the applicant.

Indications that an applicant cannot act on their own behalf include:

• a relative or friend applying for or with the applicant
• a request to waive knowledge or language requirements because of mental disability.

On this page

• Acting on behalf of an applicant
• Refer applicant to citizenship officer (level 2)
• Who can be a guardian?
• Documents needed for guardianship
• Using an affidavit

Acting on behalf of an applicant

The citizenship legislation stipulates who may apply on behalf of a minor, and that adults make their own applications. There is nothing in the legislation addressing the situation when someone purports to act on behalf of an applicant who has a mental disability. Where there is doubt that a citizenship applicant can conduct their own affairs in the citizenship process, another person must apply on their behalf. The person acting on behalf of the applicant must provide proof showing they have the legal right and duty to care for the incompetent person and that a recommendation to the Minister to waive the oath needs to be obtained before the applicant can be issued a citizenship certificate.

Refer applicant to citizenship officer (level 2)

The applicant should be referred to a citizenship officer as soon as practicable. The citizenship officer will determine whether to recommend a waiver of language, knowledge and/or the oath. The application form is to be forwarded to the Case Management Branch (CMB) with the documentation required (medical opinion and evidence of guardianship). Where the request for waiver is approved, CMB will return the file to the citizenship officer for completion of the decision.

Who can be a guardian?

A legal guardian has the legal authority (and the corresponding duty) to care for the personal interests of the individual. Nevertheless, the relationship between the parents and the individual may remain. Guardianship can arise in a number of ways including:

• election by the incompetent (power of attorney);
• appointment by the court (judicial court order);
• assumption of the role of guardian without legal authority (guardianship role simply assumed by another party).

A parent is considered the guardian for their minor child. The birth certificate showing parentage is sufficient evidence.

Guardianship Assumed

Where guardianship has been assumed (no power of attorney or court order obtained), an affidavit from the caregiver is acceptable. This situation arises most commonly where the parent or sibling has the care for their mentally incompetent adult child or sibling.

Assumed guardianship should only be considered as a last resort if the care giver can convince the IRCC official of why they cannot provide legal guardianship.

Adult child care giver of parent

An adult child responsible for their incompetent parent will usually have a court order or power of attorney document.

Documents needed for guardianship

Include with all recommendations to waive oath for medical reasons:

• a completed Request for Medical Opinion form;
• a 5(3) Waiver Referral Form;
• the document proving guardianship;
• power of attorney document; and\or
• judicial court order; and\or
• an affidavit, if required.

Using an affidavit

An affidavit is acceptable where guardianship has been assumed and formal documentation is not easily obtained.

Affidavits should:

• be written by the guardian in the person's own style;
• indicate that they are qualified to act on the applicant's behalf;
• be expressed in simple understandable English or French;
• contain specific information outlined below; and
• include signed statements/letters, outlining the facts, of other family members/interested parties, if available.

Information required for an affidavit to act on behalf of a citizenship applicant

An affidavit concerning guardianship should include information as follows,

1. Application ID No. (If known by applicant)
2. (Name of Guardian) of the city of (Name of City) in the province of (Name of Province) affirm that:
3. Using the first person, the Guardian should state what his/her relationship is to the applicant (State Applicant's Name) born on (State Applicant's Date of Birth) in (State Applicant's Place of Birth), whose application for citizenship is being/was made on (State Date Application Made).
4. The Guardian should state why he/she is acting on behalf of the client (State Applicant's Name). The Guardian should include any relevant facts including the nature of the relationship with the client and any legal authority presently held showing that the Guardian can represent the client.
5. The Guardian should state whether he/she is acting in the best interest of the client. The guardian should include any known personal knowledge of the client's needs and wishes.
6. The Guardian should state whether a medical certificate in respect to the client is on file or attached to the affidavit.
7. The guardian signs the affidavit.
8. The affidavit is attested by an authorized person.

The citizenship officer should be confident that:

• the guardian understands the significance of guardianship and what is being done; and
• the guardian is acting in the best interest of the applicant.

After the supporting affidavit(s) are completed and accepted, the person designated to act on the citizenship applicant's behalf will carry out the normal application process, signing all standard forms on behalf of the applicant.

Related topic: Taking affidavits or declarations.

Refer questions to CMB

Consult CMB if in doubt about a guardianship or power of attorney document.

When to obtain documentation

The request for documentation concerning a person who is mentally incompetent should be made as soon as IRCC officials are made aware that the person may be mentally incompetent. The Call Centre should inform the caller of the required documentation when the caller indicates they are calling on behalf of a person who is mentally incompetent. Mailed in applications accompanied by satisfactory documentation (medical opinion form and evidence of guardianship) may be processed in the usual way. Applicants will be referred to a citizenship officer for a personal appearance.

Where there is no indication prior to the test session that a person may be incompetent, the documentation will be requested as soon as IRCC officials are made aware of the situation.

For additional information, see:

 

Minor applying under subsection 5(1) and the related application guide (CIT 0403)