Property Guardian Applications - Hull on Estates #190
Listen to: Property Guardian Applications - Hull on Estates #190
This week on Hull on Estates, Craig Vander Zee and Natalia Angelini discuss property guardian applications.
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Craig R. Vander Zee - Click here for more information on Craig Vander Zee.
Natalia R. Angelini - Click here for more information on Natalia Angelini.
Property Guardian Applications - Hull on Estates- Episode #190
Natalia Angelini: Hello and welcome to
Welcome to
Craig Vander Zee: Hi and welcome to another episode on
Natalia Angelini: And I’m Natalia Angelini.
Craig Vander Zee: If you want to be heard on
Natalia Angelini: I’m great, how are you?
Craig Vander Zee: Good thanks. It’s busy now this time of the year with the holiday season upon us.
Natalia Angelini: Oh I know it is and I couldn’t help but notice all the people around on the weekend buying trimmings for the trees and getting all their outdoor plants dealt with.
Craig Vander Zee: Yeah, I certainly noticed lots of activity in the neighbourhood and of course in the stores as well, right? Everyone’s getting ready for the holidays.
Natalia Angelini: Yeah. It’s busy around here as well. And I’m happy to take out this time to chat about our topic today which is an interesting one. It’s about guardianship applications and it’s inspired from a really interesting paper given by the Public Guardian and Trustee at the recent Estates and Trusts Summit.
Craig Vander Zee: Yes, the paper itself was delivered by Vani Santi and dealt with property guardianship applications and management plans and more specifically with ten problems and ten solutions. And again, that was a part of the Law Society forum held on November 13, 2009.
Natalia Angelini: Right, so we’re going to touch on some of the issues dealt with in the paper. I don’t think we’re going to have time to cover them all but perhaps we’ll see how we go.
Craig Vander Zee: Well perhaps the first place to start would be the application itself and what is needed by way of the application. Now I don’t think we’re going to touch upon the details today of the management plan itself but of course with an application we need to have a management plan that sets out the property of the individual and amongst other things, the plan with respect to managing that property in the event that the property guardianship application is granted.
Natalia Angelini: Right and I think one of the things that the paper correctly notes is that you do need full disclosure in the application for guardianship. And the Substitute Decisions Act really establishes the framework to address guardianship issues. And the two main issues are one of autonomy and the second is giving this incapable person the appropriate assistance that they need.
Craig Vander Zee: Of course when we’re talking about this application, you’ve mentioned it but it certainly bears repeating that it’s pursuant to the Substitute Decisions Act and the applicable sections therein. So that is the legal framework within which the application is brought. And of course, the Rules of Civil Procedure.
Natalia Angelini: Right, and because the essence of what is being sought is, you know, taking away someone else’s liberty and giving you, the applicant, the ability to manage their property, full disclosure is what the Court will need in order to make that type of a decision.
Craig Vander Zee: Aside from disclosure, one of the issues is the ability and the suitability of the applicant to fulfill the duties, the powers and the obligations of a guardian of property. And so once disclosure is made as required in the application, the Court is also going to be interested in the ability and the suitability as I’ve just mentioned of the applicant to take on that responsibility in respect of managing the property.
Natalia Angelini: Right and here it’s interesting that although an applicant may do so out of the sense of duty or obligation at times, what really has to be thought about is whether that person realistically can undertake and devote the time and skill required to fulfill that role. So some of the factors that may have an impact on the suitability of the proposed applicant are, you know, their background and in addition to the nature and complexity of the property that has to be managed, the ability to post security and even the ability to conduct litigation if that is what’s happening in respect of the incapable person’s property.
Craig Vander Zee: Well that’s right and again, it’s really the Court’s review as to whether the person has the right skill set and is the appropriate person. For example, does the person…it’s not necessary…but does the person have accounting and business experience or expertise? Do they have past experience with the management of assets? If they’re complex assets that are going to be managed, do they have that kind of experience? And you know certainly are there any conflicts that need to be addressed vis-à-vis the relationship between that individual? For example, it could be the case that the individual seeking guardianship has a loan outstanding to the individual and perhaps that is a conflict of interest. Now again, all of this is dependent on the specific facts and the circumstances of each case. So these are, you know, items and issues that one needs to take a look at in preparing and bringing the application for guardianship of property.
Natalia Angelini: That’s right. And another key issue, critical issue I guess, the core issue is really evidence of incapacity. So the Substitute Decisions Act does not expressly provide for the standard of proof that’s necessary to establishing capacity. However the case law suggests a civil standard that is specifically directed at the definition of incapacity to manage property. And Section 6 of the Substitute Decisions Act sets out the definition.
Craig Vander Zee: And the Court may require evidence from a physician. It may be that there is a capacity assessment. It may very well be that the first step in the guardianship application itself is an Order that a capacity assessment be conducted. It could be that there is no cogent available medical evidence from a doctor. Indeed maybe the person hasn’t seen a doctor for some time but there is certainly evidence that the person has issues with capacity. In that particular situation the Court will likely first order that there be a capacity assessment and then come back to the Court to deal with the guardianship application itself.
Natalia Angelini: Good point. With respect to the actual capacity evidence, the most cogent evidence seems to be the up-to-date medical evidence from a qualified professional or a capacity assessor. And that said, other types of evidence may be considered by the Court. And it seems that what is critical to a Court may include the background information of the assessor, the relationship of that person to the patient, the types of tests that the assessor has conducted, you know, the number of times the patient has been seen and the basis for the conclusion of incapacity. And the more current the evidence, or the most current evidence it would seem would be the most persuasive.
Craig Vander Zee: And again, there can be situations where such medical evidence isn’t available.
Natalia Angelini: Right.
Craig Vander Zee: Or not available to the person who is bringing the guardianship application. So quite possibly there might need to be an Order that that documentation be released based on the application materials. It could also be that other evidence, that is the evidence of relatives or neighbours or others who have observed the person, may also be adduced for the benefit of the Court and may be quite helpful with respect to the Court’s determination of the application itself. Again, each of these cases depends on its own facts and circumstances and each family or each individual is different and may have a different set of circumstances including relationships with family members, relationships with neighbours, relationships with professionals and whether there are Powers of Attorney that are possibly valid in the circumstances and the make-up of the assets. Just on that one point if there is a Power of Attorney for Property that is valid, that is obviously something that has to be dealt with by way of the guardianship application as well. And I’ll leave that as will Natalia…I think we leave that topic as to how to deal with a guardianship application when there are competing or issues with Powers of Attorney for Property that have been granted by the individual.
Natalia Angelini: Some of the other things to consider are things like the least intrusive method of protecting this person, be it by way of continuing with the current attorney or having a guardian appointed or some other mechanism. Also another issue to consider is representation for the alleged incapable person. For example, by way of Section 3 counsel of the Substitute Decisions Act.
Craig Vander Zee: And again Natalia, with Section 3 in the appropriate circumstances the appointment of a Section 3 counsel can be beneficial to the alleged incapable person and may assist in achieving the goals of the SDA. And again, that’s going to depend on the situation itself.
Natalia Angelini: Right and given our time constraints, we don’t have a chance today to really flush all of that out. So I think we’ll just maybe end off by turning to look at the issue of security. So the purpose of posting security is not only to minimize the risk of loss to a vulnerable or incapable person but also to provide certainty of indemnification in the event of a loss.
Craig Vander Zee: And again if there’s an individual who is seeking to be a proposed guardian, it’s quite possible that security will be required. In the appropriate circumstance it may be that the individual wishes to have a co-guardian such as a trust company who doesn’t have to post security given the legislation applicable to it. So in a number of cases or the appropriate cases it may very well be that notwithstanding that the individual is a son or daughter perhaps of the alleged incapable person that they seek to have a guardianship application where they together with a trust company are co-guardians and therefore alleviate the issue with respect to the provision of a bond and security.
Natalia Angelini: Right and in cases where that’s not possible, you know, for example if the assets are so modest that it might be difficult to get a trust company on side to act as co-guardian and so you’re in a situation where you do need to apply for the bond. Since that application process can be protracted, it might be advisable for the proposed guardian to commence that application in advance of the guardianship application hearing.
Craig Vander Zee: Certainly it may be appropriate to make inquiries as to what would be required for the bond by the bonding company as opposed to…whether an official application is filled out or not, inquiries can be made to see if the bond is something which is probable or improbable in the circumstances.
Natalia Angelini: Right and once appointed guardian if there is going to be any significant change, either an increase or decrease in the value of the assets, then you know an amended plan would have to be submitted and the issue of security reconsidered.
Craig Vander Zee: Well Natalia, I think that’s all the time we have today. As always, it is a pleasure having the opportunity to podcast with you. And if we don’t podcast before the holiday season, I certainly hope you enjoy the lead up and the holidays themselves.
Natalia Angelini: Thank you, likewise. So until next time, everyone have a great day.
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