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Category: Guardianship

Amending an incapable person’s management plan 101

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Amending an incapable persons management plan 101

As wills, trusts and estates practitioners, it is important to understand the procedure of Guardianship Applications. It is crucial that these applications be completed correctly and that the client understands their duties.

What is guardianship?

When a person is mentally incapable of making decisions relating to their personal care or property, they will require a substitute decision maker to make choices on their behalf. A power of attorney is the typical way in which someone can designate another person to make decisions on their behalf. However, this can only be granted when the grantor is capable.

What happens when someone becomes incapable before the execution of a power of attorney?

 A guardian is appointed by the court or Public Guardian and Trustee (PGT) on behalf of a mentally incapable person to make decisions on the mentally incapable person’s behalf. In order to be appointed, the prospective guardian must file an application. A guardianship for property application requires a notice of application,  an affidavit, a management plan and a finding of incapacity. The notice, like any other notice in litigation,  will provide the overview  of the  relief sought and the  grounds for same. The affidavit will include the  evidence that a prospective guardian will rely on in their application for guardianship. The affidavit will usually include the management plan and proof of a finding of incapacity such as a capacity assessment – the finding of incapacity is required in all guardianship applications. If the person is capable, then they do not require a guardian and could simply execute a power of attorney.

A management plan is the applicant’s proposed plan for the management of an incapable person’s property. The section that an applicant will typically find the hardest to fill out is section L, which are the expenses of the incapable person. These expenses need to be estimated for the needs of an incapable person for the entirety of their guardianship, which is difficult as circumstances may change. The plan  must  be followed  by  the  guardian.  If  the  guardian does not  follow  the  plan, there is risk the Office of the Children’s  Lawyer  (OCL)  or  the  PGT will object to their next passing of accounts. A passing of accounts is a court audit of the incapable  person’s accounts. The guardian must prepare their accounting of all the funds that flowed in and out of the incapable person’s account for the review of the PGT/OCL and judge.

Amending a management plan

 For some unforeseen circumstances as listed below, a lawyer may have to amend the management plan for their clients. Common circumstances for the amendment of a minor’s management plan include, but are not limited to:

  • the receipt of monetary damages or settlements pursuant to a court order;
  • monies payable to a minor in an estate; and
  • the child has been named as a named beneficiary under policies such as a life insurance policy, RRSP or death

Common reasons to amend a management plan for incapable adults include, but are not limited to:

  • proceeds or settlements from personal injury matters; and
  • sale of a house.

Lawyers must pay special attention to the different procedural and service requirements for minors under the Children’s Law Reform Act (CLRA) compared to incapable adults under the Substitute Decisions Act (SDA).

Amending a management plan for minors

 The powers and obligations of a guardian of property for a minor are contained in the CLRA. The CLRA does not authorize an amendment to a management plan for a guardian of property except by court order, as the court has the statutory power to approve amendments to a management plan for minors. The guardian of property must bring a motion to amend the management plan by filing a Notice of Motion. The Notice of Motion must be served to the OCL.

Amending a management plan for incapable adults

 Section 38(11) of the SDA provides the PGT with the statutory authority to approve amendments of a management plan.

To amend a management plan, an applicant would be required to submit an application to the PGT’s office. In practice, the PGT would respond with a letter of acknowledgement upon receipt of the material. The PGT would review the material and submit a reply to the applicant and to court with comments on the application. Comments may include inquiries related to future accounting, financial management of the property, or the guardian’s compensation. Generally, this process would take a couple of months.

If the request was not approved, an applicant may apply for  direction from the court under s. 39 of the SDA on notice to the PGT for court approval of the amended management plan. An amended management plan need only be served to the PGT.

It is important that the guardian for property understand their duties and it is imperative that the management plan is followed. If guardians cannot follow their own proposed  budget, there will likely be repercussions in the form of the OCL/PGT (depending on the age of the incapable person) or a family member objecting to their accounts in their application to pass accounts. If the guardian is not following the plan and is not acting as a fiduciary, the court may remove them as guardian and/or seek for them to repay any costs they are deemed to have taken improperly (with interest).

Ultimately, when a guardian fails to fulfil their duties, it is the incapable person  who suffers. Clients need to understand the significance of their responsibilities and it is our job as their lawyers to inform them.

Overprotected: Section 3 Counsel & Britney Spears

Overprotected: Section 3 Counsel & Britney Spears

On July 14, 2021, Britney Spears was granted the right to hire her own lawyer to free herself from her conservatorship. The Ontario equivalent is a “‘guardianship” not “conservatorship”. You can read more about the differences between a guardianship and conservatorship here.

Previously, Spears had a court appointed lawyer, Samuel D. Ingham III. We do things differently in Ontario, but you could say that Britney’s court appointed lawyer is similar to what we have here called “section 3 counsel” per the Substitute Decisions Act (SDA) 1992, S.O. 1992, c.30 (s.3).

What is section 3 counsel?

 Section 3 of the SDA as amended, states:

Counsel for person whose capacity is in issue

3(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,

  • the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
  • the person shall be deemed to have capacity to retain and instruct 1992, c.30, s.3(1).

Responsibility for legal fees

  • If legal representation is provided for a person in accordance with clause (l)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal 1992, c. 30, s. 3( 2); 1998, c.26, s.108.

Same

  • Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,
  • the person’s guardian of property; or
  • the person’s attorney under a continuing power of attorney for property. 2009, c. 33, 2, s. 71(1).

Section 3 of the SDA states that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding.

What are the duties of s. 3 counsel?

 The leading case of Sylvester v. Britton 2018 ONSC 6620 lists the duties of section 3 counsel:

  1. Seek instructions from [the individual] and act on those instructions;
  2. Keep confidential all communications with [the individual] and all information that he/she obtains from the individual or on the individual’s behalf;
  3. Diligently and ethically advance [the individual’s] interests in accordance with her instructions;
  4. Ensure that legal, procedural and evidentiary requirements are tested;
  5. Make [the individual’s] position or wishes known to the court; and
  6. If [the individual] lacks capacity to provide instructions at any point in the litigation, promptly take steps for the appointment of a litigation

Section 3 counsel is still required to follow Spears’ instructions, advocate on her behalf and determine if the client has the capacity to provide instructions – this is essentially the role of counsel.

Spears’ prerogative to counsel

 Spears’ fundamental right to choose her lawyer has now been restored. In Ontario, this would mean that her lawyer has been satisfied that Spears has capacity to instruct him or her and she does not require to continue to be deemed to have the capacity for the purposes of instructing counsel. This supports her case as it illustrates that she has the capacity, and a guardianship/conservatorship is not required.

For someone who has had all her decision making and financial freedom taken away, having the chance to make a major life altering decision in choosing her advocate is a matter of significance.

Legal fees

 Despite s. 3 counsel being court directed, the legal fees of s. 3 counsel would still be borne by Spears (in this hypothetical) . From section 3(2)  of the  SDA, appointed  counsel  would  be permitted  to reimburse themselves from Spears’ funds for the  work  on her file. If  the legislation is similar to Ontario, Spears is still responsible for her court appointed lawyer’s fees.

Overall, Spears being able to choose her own lawyer may be indicative that she has the capacity to instruct counsel and doesn’t need to be deemed to be able to do this by the courts. With the free Britney movement, it is a hopeful step for Spears to be rid of what she would say is a “toxic” relationship with her father.

Hot Topics: Guardianship – When There is no Power of Attorney in Place

 

 

 

 

 

 

 

Guardianship – When There is no Power of Attorney in Place

By: Kim Gale and Gabriela Caracas

The average person does not give much thought to giving someone authority to act on their behalf though a Power of Attorney (“POA”), that is, until they are at a lawyer’s office. A serious medical issue in which incapacity becomes an inevitable reality for mom and dad may mean that it is too late for them to draft a POA. 

It is not uncommon for people to live their entire lives not knowing what a Power of Attorney is, but need it when it is too late. When is it too late? In order to have a valid Power of Attorney, capacity is required at the time of creating the document. If you are already incapacitated and incapable of making personal and financial decisions regarding your affairs, you are not capable to designate someone to handle those for you.

So what happens then when your family member or close friend becomes incapacitated and never had a Power of Attorney? You can still step in to help someone close to you by being appointed as their guardian. 

Both the Office of the Public Guardian and Trustee (PGT) and the court have authority to appoint guardians. 

The PGT can appoint a guardian in instances where they are already acting as a guardian for the incapable person, and in turn appoint another individual, such as a relative, spouse or partner, to act in their place. In this scenario a court order is not required and you can submit two forms to the PGT for consideration – (1) Application to replace the Public Guardian and Trustee as Statutory Guardian of Property, and (2) Management Plan. 

Alternatively, the court can appoint a guardian. This process is lengthier and not as straightforward, as you will need to demonstrate to the court that your mom or dad is incapable and as a result that they require a guardian. Even with the application to the court, the PGT remains involved as you are required to serve the PGT with your application to the court. 

The court will consider the following in making determinations under guardianship applications: 

  • the age of the proposed guardian;
  • where the proposed guardian resides;
  • the closeness of the relationship between the proposed guardian and the incapable person; 
  • views of other people who are involved in the incapable person’s life; 
  • the incapable person’s current wishes, if they can be ascertained; and
  • the management plan. 

Despite the fact that not all is lost when someone becomes incapacitated and does not have a Power of Attorney, it is still advisable to pursue the necessary steps to have one drafted before it is too late. By having a Power of Attorney, you are the ultimate decision maker,  and you do not have to leave such an important decision at the hands of the PGT and/or court. 

It is important you contact a lawyer to better understand your rights. 

Gabriela Caracas is an Associate at Fogler, Rubinoff LLP who practices litigation and is growing her practice in estate litigation.