40.  (1)  A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.

(2)  The compensation may be taken monthly, quarterly or annually.

Amounts taken monthly or quarterly could be divisions of a calculated "annual" amount, but this provision contains no element requiring equal divisions.  Regardless of how the property guardian takes compensation, any payment is subject to court approval.  Clients applying for guardianship should always be advised specifically of this point: if the court later disagrees with the compensation taken, the guardian may have to repay such amounts.  This holds true even where the Management Plan pursuant to which the guardian is managing the incapable person's property authorizes the compensation the guardian has taken.

This raises another important consideration for lawyers in the application for guardianship stage.  Any compensation taken, or claimed later on a passing of accounts, should not be inconsistent with the provisions of the Management Plan.  Because the right to compensation is statutory, as are the prescribed percentages (though subject to discretionary reduction by the court), there is no need to declare an intention to take compensation in the Management Plan.  But if the Management Plan contains a provision disclaiming compensation, for instance, no compensation should be taken during the guardianship.

Have a great day,

Christopher M.B. Graham - Click here for more information on Chris Graham.

The applicant wished to issue a guardianship application under sections 22 and 55 of the SDA in the Toronto Region Estates Office. The guardianship application was in respect of her son who was injured in a car accident in 1997. The applicant and her son lived together in Bradford, Ontario. The applicant’s counsel wrote to Brown J. asking for directions as to whether the application could be commenced in Toronto.

In his Endorsement [not yet reported], Brown, J. noted that an informal policy existed in the Toronto Region Estates Office that it would only accept applications under the SDA where the supposed incapable person resided in Toronto notwithstanding the fact that no statute or rule imposed such a limitation. In fact, Rule 13.1.01 of the Rules of Civil Procedure provides that a “proceeding may be commenced in any court office in any county named in the originating process” unless a “statue or rule requires the proceeding to be commenced, brought, tried or heard in a particular county.”

Brown, J. noted that neither the SDA nor any statute or rule specified the place of commencement for an application under the SDA. Brown, J. therefore held that the applicant was permitted to commence her guardianship application in Toronto and directed the Toronto Region Estates Office to accept her application for issuance.

With this decision in hand, it is now possible for counsel to commence a guardianship application where they see fit and as appropriate. This is good news indeed.

Justin

The court recognized that the position of section 3 counsel is “potentially one of considerable difficulty”. However, the court did not believe that section 3 counsel was in the position of a litigation guardian with authority to make decisions in the incapable person’s interest. According to the court, counsel must take instructions from his/her client and “must not act if satisfied that capacity to give instructions is lacking”. A very high degree of professionalism may be required in borderline cases where it is possible the incapable person’s wishes may be in conflict with his/her best interests and counsel’s duty to the court. The phrase offers precious little guidance to section 3 counsel, but does sound a cautionary note. In the circumstances, perhaps the best advice is for section 3 counsel to fully explain the situation to the court and ask the court’s advice and direction. 

Finally, as an aside, the Ontario Government has now introduced legislation that would allow people to apologize with impunity. In other words, an apology will not be held against you in court. The hope is that “The Apology Act” will go a long way to defusing a contentious situation before litigation results. Sorry may, in fact, go a long way.

As always, thanks for reading.

Justin

Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained. 

In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.

While Greer, J. was aware that an assessment could cause the incapable some anguish, she was of the view that it was essential to have a second assessment in order that there be full and fair medical and neurological data before the court when the issues were determined.

Justin.

The Substitute Decisions Act is silent when it comes to the issue of compensation for personal care guardians. Section 40 of the SDA addresses compensation for property guardians, but there is no corresponding provision for personal care guardians (though regard can be had to section 68(4) of the SDA). 

I was recently before Brown, J. in Toronto Estates Court in respect of a request for compensation by a personal care guardian (the decision is not yet reported). The property guardian, who I represented, supported the request for compensation, but the PGT questioned the amount requested and wondered whatever happened to “natural love and affection”.

In coming to his decision, Brown, J. applied the analysis set out in Cheney v. Bryrne, which he found was applicable to claims for compensation by personal care guardians. Brown, J. also applied, by analogy, the approach applied by the court to claims for compensation by property guardians. The test regarding the reasonableness of compensation claims was set out in Re: Brown (1999), 31 E.T.R. (2d) 164 (link not available). 

According to Brown, J., the evidence before him clearly demonstrated that the incapable needed the services provided by the personal care guardian. He was also satisfied that the personal care guardian was providing the services to the incapable with care and devotion and that her services were of a high quality and went well beyond what was ordinarily expected. Moreover, the incapable obviously could afford to pay for the services (not an insignificant factor). In considering the level of compensation, Brown, J. was satisfied that the amount claimed was reasonable and in the best interests of the incapable. He therefore approved the compensation claimed.

Thanks for reading. 

Justin

Pursuant to Section 15 of the Substitute Decision Act (“SDA”), the PGT can be declared a person’s statutory guardian of property where a certificate is issued under the Mental Health Act (“MHA”) certifying that a person who is a patient of a psychiatric facility is incapable of managing property. Whenever a patient is admitted to a “psychiatric facility”, as defined by the MHA, a physician examines the patient to determine if he or she is capable of managing property. If the physician determines that the patient is not capable of managing property, then he or she must issue a certificate of incapacity. The certificate is subsequently sent to the PGT. As a result, Section 15 is triggered and the PGT steps in as the statutory guardian without any procedural requirement.

Pursuant to Section 16 of the SDA, the PGT can be declared a persons statutory guardian of property where a person requests an assessor to perform an assessment of either their capacity or another person’s capacity. This assessment is done with the view of determining whether the PGT should become the statutory guardian’s of the property. If a person wishes to request that an assessor perform an assessment of another person’s capacity, the person requesting the assessment must: (i) have reason to believe that the other person may be incapable of managing property, (ii) have made reasonable enquiries and have no knowledge of the existence of any attorney under a continuing power of attorney, and (iii) have made reasonable enquiries and have no knowledge of any spouse, partner or relative of the other person who intends to make an application for the appointment of a guardianship of property.

Thank you for reading and I hope my blogs added extra flavour to your favourite morning beverage. 

Rick Bickhram

A common complaint that I hear is from family members or friends who feel excluded from participating in or influencing decisions regarding the incapable person, particularly when it comes to personal care.  

However, under the Substitute Decisions Act, 1992, which generally governs the rights of an incapable person, any person, with leave, can seek directions from the court on any question arising under a power of attorney (the same is true regarding a court appointed guardian). Pursuant to sections 39 and 68 of the Act, the court may give such directions as it considers to be for the benefit of the incapable person and consistent with the Act.

Section 66(1) of the Act sets out the duties of an attorney for personal care (section 32 is the corresponding section for an attorney for property). In general, the attorney is required to exercise his or her duties and powers with diligence and in good faith. 

Section 66(6) also states that an attorney must foster regular personal contact between the incapable person and supportive family members and friends. Moreover, section 66(7) states that the attorney shall consult with supportive family members and friends who are in regular contact with the incapable person, as well as the incapable person’s caregivers. 

The requirements of section 66, coupled with the ability to seek directions from the court, offer family members and friends the means to ensure that they remain involved with their loved ones and are not simply sidelined. Proceeding to court is always expensive. However, where there is genuine concern and frustration that the incapable person is not being properly cared for and/or his or her finances are being squandered, recourse can be had to the courts.

Ciao!

Justin

What happens when the gift you were promised under a Will is disposed of before the testator’s death? The answer is that it depends on how the gift was disposed.

According to the principle of “ademption,” where there is a bequest of a specific item under a Will and that item no longer exists at the testator’s death or is no longer part of his estate at the time of his death, the gift is forfeited or “adeems.” Quite simply, you don’t get the gift.

However, a beneficiary who is disappointed to learn that a promised gift no longer exists must consider how the gift was disposed. More specifically, who disposed of the gift and for what reason.

Under Ontario law, if the gift was disposed of by a guardian of property or an attorney acting under a power of attorney, as the beneficiary of that gift, you are not necessarily out of luck. Section 36 of the Substitute Decisions Act (the “Act”) provides that a beneficiary of an adeemed gift is entitled to the equivalent value of the proceeds from the disposition of the gift out of the residue of the deceased’s estate. This is known as an anti-ademption clause.

The Act sets out corresponding duties on guardians and attorneys for property to determine whether the incapable person under their care has a Will and if so, to determine the provisions of the Will.

As with most rules, there are exceptions to the anti-ademption clause, including the following:

• If the guardian or attorney had to dispose of the property to comply with her duties;
• If the testator, while alive, gave the gift to the beneficiary (an ademption by satisfaction);
• and If there is no contrary intention expressed in the Will. For instance, a clause which states that a beneficiary is not to receive any payment out of the residue in the event the gift is no longer in the testator’s estate at the time of death.
  

For a judicial consideration of the ademption rules, the Ontario Court of Appeal’s decision in McDougald Estate v. Gooderham [2005 CanLII 21091 (ON C.A.)] is worth reviewing. The decision offers an evaluation of the anti-ademption clause in the context of a sale of an incapable person’s property by her attorneys for property.

Thanks for reading.

Jason Allan

The case involved a guardianship application under s. 22 of the SDA by a man whose wife had suffered brain damage in a car accident.

Although he had consulted with his wife's parents and siblings and they consented to the application, the applicant did not want them to serve the application materials because it would result in the disclosure of financial and other personal information and he and his wife and had always been very private people. The woman's parents and siblings were fine with not reviewing or being served with the application record, and had filed consents to the application stating as much. They had also been provided with a notice of the hearing and chose not to attend.

The Public Guardian and Trustee took the position that s. 69(6) of the Substitute Decisions Act made service on certain family members mandatory. Section 69(6) provides that the notice and accompanying documents shall be served on, amongst others, the allegedly incapable person’s parents and any siblings who have reached age of majority.

The court considered whether the word “shall”, as it appeared in the section, should be interpreted as being mandatory or permissive and, in any event, whether the recipient of the documents can waive service.

Here, the court found that the right to service in order to give adequate notice to the family members belongs to the family members, not to the incapable person. Since it is the right of the family members, then it is open to them to waive their right to service. Any consent to a waiver of this type should be given effect by the court.

Have a great day!

Megan Connolly