At the recent Estates and Trusts Summit, the Children’s Lawyer (Debra L. Stephens) gave us some insight into her office’s view about the “do’s and don’ts” for counsel when preparing guardianship applications, including the following:
· Do – provide a rationale as to why the appointment of a guardian to manage the minor’s assets is better than transferring the assets to the Accountant of the Superior Court of Justice;
· Don’t – forget that the guardian’s investment options are restricted by the Trustee Act (s. 27) if nothing is stated in the plan about investments;
· Do – bring the application to the right court e.g. if a plan provides for payments out of the assets other than reasonable management fees and expenses, only the Superior Court of Justice (not The Ontario Court of Justice) has the authority to approve the plan;
· Don’t – forget that all appointed guardians are jointly and severally liable for their management of the minor’s property;
· Do – teach your client about the duty and complexity of accounting for his/her actions as guardian;
· Don’t – bring the application prematurely e.g. in a custody dispute the appointment of a guardian should only be made after custody issues are resolved;
· Do – address the need for a bond and the evidentiary basis for any request to dispense with it;
· Don’t – forget to take into account risk tolerance and the investment horizon when preparing the plan of care and management; and
· Do – address professional fees of an investment advisor and compensation.
You can get a more comprehensive read of these “do’s and don’ts” by reading Ms. Stephens’ paper entitled “Stuff” the OCL thinks is more interesting than the recession, which addresses guardianships, selling property, annuities, trust property, separation agreements and more.
Have a good day,
Natalia R. Angelini – Click here for more information on Natalia Angelini.