Listen to: Hull on Estates Episode #310 – Guardianship and Capacity Issues
Today on Hull on Estates, David Morgan Smith and Nadia Harasymowycz discuss guardianship and capacity issues in circumstances where incapacity is a distinct possibility, but not currently the case.
If you have any questions, please e-mail us at hull.lawyers@gmail.com or leave a comment on our blog page.
On Tuesday, I blogged on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.
There, the application judge denied the guardian compensation. In so doing, the application judge noted the guardian’s failure to keep proper accounts. The Court of Appeal stated that a guardian has, by statute, a fiduciary obligation to carry out his or her obligations with honesty and due care and attention. “The core of these obligations includes the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate.”
Further, the application judge went on to find that “the conduct [of the guardian] has been shocking. He has literally helped himself to many thousands of dollars from his mother’s estate, at a time when his mother had Alzheimer’s and was unable to look after her own affairs.”
Together, these two factors led to a denial of compensation: a conclusion that was said to be clearly in the discretion of the application judge.
In denying compensation, both the Court of Appeal and the court below relied on the decision of Zimmerman v. McMichael Estate, 2010 ONSC 2947. This decision clearly sets out the obligations of a trustee, including the obligation to account. The application judge found that because significant funds disappeared from the estate without adequate explanation, it was appropriate to award no compensation. The application judge contrasted this with the situation in Re Assaf Estate, 2009 CanLII 11210. There, there was wrongdoing found, but no harm was said to have resulted to the estate. In that situation, compensation was reduced by 50%, but not disallowed completely.
Thanks for reading,
Paul Trudelle - Click here for more information on Paul Trudelle.
In Ontario (as in most jurisdictions), a person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointer: see s. 61 of the Children’s Law Reform Act.
The appointment is only effective if there is no one surviving who is entitled to custody. In Ontario, the appointment is only effective for 90 days, during which time an application for guardianship is usually brought.
Choosing a guardian can be a difficult task. Where there are two parents, a consensus should be reached. (Under the Ontario legislation, where there is more than one appointment, the appointment is only effective with respect to the guardian(s) named in both appointments.)
The Will of the recently deceased Beastie Boy, Adam Yauch, contains an unusual clause that may be the result of the difficulty of resolving the question of who to appoint, and the compromises that are sometimes made.
In his Will, according to an article on the Forbes website by Deborah L. Jacobs, if Yauch died in an even-numbered year, his parents are to be appointed as guardians of his daughter, with his wife’s parents as backup. If Yauch died in an odd-numbered year, the situation was reversed, and his wife’s parents were appointed guardians, with Yauch’s parents as backup.
Such a clause would only be effective if his wife predeceased him, or died at the same time as Yauch.
Presumably, the terms of Yauch’s wife’s Will mirrored these provisions.
An interesting solution to a common issue.
Thank you for reading,
Paul Trudelle - Click here for more information on Paul Trudelle.
If more than one person wants to be the guardian, the content of the Guardianship Plans will determine who is best suited for the job. The case of Nguyen-Crawford v. Nguyen [2011] OJ No. 5424, 2011 ONSC 7190 states the areas that a Guardianship Plan should cover:
- the prior and present wishes of the incapable person regarding their long-term care and placement;
- the ability of family members and the incapable person to afford care at home;
- the willingness of family members to access community programs for the incapable person;
- the proposed dietary regime and personal dietary preferences of the incapable person;
- detailed residential plans and changes to those plans if the incapable person's health is declining;
- a rationale for any proposal to move the incapable person from their community; and
- detailed plans regarding access for family members and friends.
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