Guardianship Applications - Hull on Estate and Succession Planning #194
Listen to: Guardianship Applications - Hull on Estate and Succession Planning #194
This week on Hull on Estates and Succession Planning, Ian and Suzana talk about taking a non-contentious step toward obtaining a guardianship application.
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Guardianship Applications - Hull on Estate and Succession Planning #194
Welcome to
Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 194 of our podcast on Tuesday, February 9, 2010.
Ian Hull: Hello Suzana.
Suzana Popovic-Montag: Hi there Ian. How are you?
Ian Hull: I’m great thanks. And yourself today?
Suzana Popovic-Montag: Good thank you.
Ian Hull: Good. Well why don’t we…one of the things that we got a little feedback from our last podcast after we had done it was that we may not have sort of illustrated as clearly as we could have this non-contentious step, but yet Court step, of getting an application for guardianships through the system. And I think it’s useful again the similarities across jurisdictions are very high and so it sort of is a broad spectrum approach to this. But we have a handy chart that we’re now going to show up on the screen to illustrate the litigation process. And we call it the litigation process – it probably should be more the non-contentious process or the litigation process, depending on your circumstances. But it’s shorter to say litigation process.
So as you can see from the chart, the steps are as we described back in our previous podcast but they seem to…nothing ever hurts to show in graph form. But it identifies in the first chart the first initial step.
Suzana Popovic-Montag: And that is to prepare the actual Record, the Notice of Application seeking the appointment of a guardian and the supporting Affidavit that will contain the information that will give the Court the comfort of knowing it can make that declaration.
Ian Hull: And the details of that application include, of course, the details of incapacity.
Suzana Popovic-Montag: And then once that Record has been prepared and issued by the Court, then you’re going to actually serve it on the respondents. And I’m sure each jurisdiction will tell the individuals that are involved who those respondents have to be or who those family members have to be that are served with this Record.
Ian Hull: And it’s interesting, certainly in Ontario, the service issue is vitally important. Obviously you can’t proceed without doing it properly but it’s also interesting that we require here in Ontario that the application be served on the incapable. Now with rare occasion you can get a Court Order to ignore the service requirement. But it was definitely a strong message by the legislature here in Ontario that said at the time of the Substitute Decisions Act, they said look if someone is going to have a declaration of incapacity made about him or her, you have to put the Court materials in front of them, whether their capacity is strong enough to respond to it or not. And I guess that gives rise to that grey area scenario when the individual who is “incapable” is served with the application because the Rules say you have to be. When we say served, that’s personally handed to the individual. What can happen then is, of course, interesting because they may well speak to their own counsel, they may well have something to say about the plan. And why don’t we just spend a minute about when we get that service on that individual, what…let’s talk a minute about the Section 3 counsel possibility under the Substitute Decisions Act.
Suzana Popovic-Montag: And under that section of our Act, Ian, someone who is incapable may still have the right to instruct a lawyer to have that opportunity to say to their lawyer, this is something I do or don’t want or these are the parameters of how I’d like it to go. And they actually have a voice by virtue of our legislation here in Ontario.
Ian Hull: And that counsel is obligated to act on the instructions of that allegedly incapable individual. So it’s a tough job and a job that sometimes is not easy to fulfill when you are counsel appointed by the Court in that role. But nonetheless an important one.
Suzana Popovic-Montag: And it really does, as you say, underscore the importance of this decision that we’re asking the Court to make. And that is, to take away someone’s liberties. And so every opportunity possible by serving or requiring to serve the closest family members, by serving the individual themself that we’re dealing with, by serving the Public Guardian and Trustee’s office here in Ontario again, these are all sort of safeguards that are put in there to ensure that this is not done surreptitiously, that it’s done fully out in the open so that if and when someone wants to respond, they have that opportunity to do so.
Ian Hull: Absolutely. So the last component of the process which I thought was helpful is the fact that everybody who has to be served gets served, but not everybody who’s served participates.
Suzana Popovic-Montag: That’s right. And the people who choose to participate actually have to let you know. And so they’ve got to file a Notice of Appearance and file that with the Court so that you know that these are individuals who are going to have a voice at the end of the day.
Ian Hull: And that service of the Notice of Appearance really is important because some people get served and they feel they have to respond because they have been served, not because they want to participate.
Suzana Popovic-Montag: That’s right.
Ian Hull: And I think that’s obviously a mistake but I think that’s an important distinction that people can understand very readily that just because they’re put on notice, it doesn’t mean they have to jump into the game. In lots of cases, there is no need to jump into the game because the proposed guardian is sensible, the parameters of the guardianship plan and the guardianship of property and management plan are all sensible. So why bother? And sometimes in large number these guardianship appointments and these management appointments get appointed on consent.
Suzana Popovic-Montag: Yes.
Ian Hull: Without a fuss which obviously is wonderful, keeps the costs down. And then I guess the final point in the process is exactly that, and that is the final judgment where a finding of incapacity is made and the plan is approved or not approved after having been reviewed by the Court. And more importantly, there’s a preliminary interim review by the Court of the plan as well.
Suzana Popovic-Montag: And of course, there will typically be a requirement in that Order that appoints someone as a guardian of personal care or property to also pass their accounts. And many times we’ll see that right in the Order itself. So that the individual knows that that’s a requirement and so that others know as well that that’s something that they’re obligated to do.
Ian Hull: And the other kind of check on the system is, of course, the Office of the Public Guardian and Trustee, who will review the management plans, review the guardianship plans and will be in a position to give their own input should they feel that the applicant has missed something, so to speak.
Suzana Popovic-Montag: And of course at the end of the day, the judge has the ultimate discretion as well if he or she chooses to put in any restrictions or limitations on what has been already blessed by everyone else, so to speak. They do have that ability as well.
Ian Hull: Terrific. Well that gets you through the process and hopefully our chart has been helpful in that regard. And we do want to remind everyone again that as sort of a social media wrap up comment that we are continuing to Twitter and we are continuing to blog every day. So we’re proud of the blogs and not to brag but we’ve been awarded awards over the years for our efforts in the blogging and podcasting world. But more importantly, I think, is the resource that we really encourage people to go to every day. We keep getting tremendous feedback on the blogs. We try to do a mixture of topics, not just plain sort of straightforward legal issues, but we touch on health issues. We have our tremendous guest blogger with Jen Hartman who blogs regularly for us who is a non-lawyer and so we get some really fascinating perspectives, non-lawyer perspectives. And we’re not afraid to delve into some broader topic areas of trust, capacity and Estate law.
Suzana Popovic-Montag: Yes.
Ian Hull: So we commend that to you and hopefully our Twitter feeds are interesting as we go along as well. So thank you very much for joining us today, Suzana. And thank you for your discussion on that chart of ours that was on the screen because I think it helps visualize what is a very important process upon which we have to go through to get the appointment, the Court-ordered appointment when you don’t have a Power of Attorney.
Suzana Popovic-Montag: Well thanks to you very much, Ian, as well.
Ian Hull: Thank you.
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