Estate Issues

A guardian is a person appointed by the court that manages the affairs of an incapable person (someone who cannot mentally make a decision).

What is the difference between a Power of Attorney and Guardian?

You might be thinking that a Guardian/guardianship seems very similar to a Power of Attorney (POA). The main difference between the two is the following:

A guardian is appointed when a person is already incapable and did not make a valid Power of Attorney document.

There are two procedures for becoming a court-appointed guardian of property, “standard procedure” and “summary disposition procedure.”

What is a Guardian of Property’s Responsibilities?

A guardian is needed when a person does not have a Power of Attorney document and is not capable to make one.

Similar to the duties of a POA of Property, a guardian of property may manage the incapable person’s property only (e.g., real estate, money). Example of responsibilities include:

• Ability to pay bills
• Open/closing bank accounts,
• Buying services or goods
• Manage your income or pension
• Apply for benefits

Also, similarly to a POA of Property, a Guardian of Property is not allowed to:

• Make decisions that concern the personal care (i.e. healthcare)
• Make a will or change an existing will of the incapable person
• Sell any property if it is gifted within the incapable person’s will (some exceptions)

Duties of a Guardian of Property

Guardians are responsible for making potentially life changing decisions for the incapable person It is important for the Guardian to establish a trusting relationship with the incapable person by involving them within the decision-making process if possible. This includes:

• Maintain a stream of constant communication with the incapable person and their family;
• Involve the incapable person in decision-making to best of their abilities if possible;
• Consult supportive family who might be involved in the day-to-day care or contact with the incapable person;

Applying to be a Guardian of Property

To become a guardian, you will need to make an application with the court. There two possible ways that an individual can become a guardian of property:

1. If the incapable person already has the Ontario Public and Guardian Trustee (OPGT) acting as their guardian of property, you can apply to them. This option is only available if the person applying to be guardian is a relative (ex. spouse, partner, child, etc.).
2. If a person has become incapable and you now wish to become the guardian of property, you can file an application with the Ontario Superior Court of Justice.

Importantly, both of these routes will require you to create a Management Plan. A management plan is a written explanation of how you intend to the manage the incapable person’s property and you will be required to follow this plan if you are granted (allowed) as the incapable person's guardian. For instance, if the incapable person owns real estate (e.g., piece of land, house), you will be required to indicate the value of those real estate properties and what you plan to do with them (keep it, sell it, rent it) and for what time period. A passing of accounts is required within 2 to 3 years.

For a guardian to be appointed, the courts must make a finding of incapacity. Click here to learn more about incapacity.

What is a Guardian of Person’s Responsibilities?

Similar to the duties of a POA of Personal Care, a Guardian of Person can manage the incapable person’s personal care only. Example of responsibilities include:

• Safety
• Hygiene
• Clothing
• Diet
• Medical Treatment
• Housing, etc.

Also, similarly to a POA of Personal Care, a Guardian of Person is not allowed to:

• Manage the incapable person’s property (e.g., homes, bank accounts, money).
• Make a will or change an existing will of the incapable person

The guardian is only allowed to make decisions that the incapable person cannot make. This may include all or only some personal care decisions. For instance, the incapable person might be able to decide what they want to eat (diet), but might not be capable to make long-term medical treatment decisions.

Duties of a Guardian of Person

Guardians are responsible for making potentially life changing decisions for the incapable person. It is important for the Guardian to establish a trusting relationship with the incapable person by involving them within the decision-making process as much as possible. This includes:

• Maintain a stream of constant communication with the incapable person and their family;
• Involve the incapable person in decision-making to best of their abilities if possible;
• Consult supportive family who might be involved in the day-to-day care or contact with the incapable person;
• Provide explanation about the duties and powers the guardian owes the incapable person

Apply to be a Guardian of Person

To become a guardian, you will need to make an application with the court. There two possible ways that an individual can become a guardian of person:

1. If the incapable person already has the Ontario Public and Guardian Trustee (OPGT) acting as their guardian of person, you can apply to them. This option is only available if the person applying to be guardian is a relative (ex. spouse, partner, child, etc.).
2. If a person has become incapable and you now wish to become the guardian of person, you can file an application with the Ontario Superior Court of Justice.
3. One part of the application will require you to create a Guardianship Plan Form. In this form, you will need to outline your plan of care for the individual you are seeking guardianship over and you must follow this plan if you are approved. Speaking with a lawyer can help you establish a suitable plan of guardianship.

For a guardian to be appointed, the courts must make a finding of incapacity. Click here to learn more about incapacity.

A Power of Attorney (POA) is legal document where the grantor (person signing the document) identifies and authorizes (grants permission) for another person to make important legal and financial decisions on their behalf.

If an emergent situation such as an accident or illness occurs and a person become incapable, the POA would represent the incapable person to make decisions on your behalf.

A POA owes a legal duty to act in the best interest (fiduciary duty) of the incapable person (the grantor).

It is important to note that in this context, “attorney” is referring to someone acting as your representative. This individual does not have to be a lawyer.

Responsibilities of a POA for PROPERTY

A POA will be responsible for representing and making decisions for an incapable person or act as an agent to a capable person related to their property and finances. The grantor (person signing the POA) may limit the POA power to only specific acts.

This includes things such as:

• paying bills,
• open/closing bank accounts,
• buying services, etc.

The POA must has an obligation to find the will (SDA ss33.1) and read the grantor's will and is prohibited from disposing of property specifically given in the will (SDA s.35.1(1).

An POA of Property is not allowed to:

• Make decisions regarding your health, safety, diet, medical treatment, etc. as this is the duties of the POA for Personal Care
• Make a will or change an existing will of the incapable person

When does a POA become "active?"

A Power of Attorney of Property grants the POA the right to handle only property and finances. It may have terms stating when it becomes effective, for example, it can state it is effective immediately after being signed as a continuing power of attorney or it is effective at a time when the grantor becomes incapable.

Standard of Care

If a POA is being paid (compensated) to act in their duties then this will determine the standard of care owed to the grantor.

If the POA is not paid for their role, they owe the grantor the duty to act with the level of care, diligence (effort), and skill level that the average reasonable person would be expected to offer.

A paid attorney has the higher standard of a person in the business of managing property of others (SDA ss.32(7)-(8)).

Compensation

Sometimes the grantor will indicate in the POA document what sort of compensation the POA is entitled to. If not, the POA can pursue to claim compensation under s.40 of the Substitute Decisions Act of the following:

• 3% of capital/income receipts
• 3% capital/income disbursements
• 3/5 of 1% of average market value of assets.

Involving the Grantor

Power of Attorneys are responsible for making potentially life changing decisions for the grantor. It is important for the POA to establish a trusting relationship with the grantor by involving them within the decision-making process as much as possible. This includes:

• Maintain a stream of constant communication with the grantor and their family;
• Involve the grantor in decision-making to best of their abilities if possible;
• Consult supportive family who might be involved in the day-to-day care or contact with the grantor;
• Ensure that the grantor and POA are on “the same page” as to the duties and powers the POA owes the grantor

Responsibilities of a POA for PERSONAL CARE

A POA will be responsible for making decisions for an incapable person or grantor regarding their health and safety. The grantor may limit the POA's power to only specific acts.

What would your POA for PERSONAL CARE do?

A Power of Attorney for Personal Care may only be implemented if the grantor is incapable of making their own decisions and would state this in the document.

If the POA believes the grantor is incapable, they can make other personal care decisions for you relating to:

• Safety
• Hygiene
• Clothing
• Diet
• Medical Treatment
• Housing, etc.
• A Power of Attorney of Personal Care is not allowed to:
• Manage property (ex. homes, bank accounts, money) as these are the duties of an Attorney for Property
• Make your will or change an existing will

Standard of Care

If a POA is being paid (compensated) to act in their duties will determine the standard of care owed to the grantor.

If the POA is not paid for their role, they owe the grantor the duty to act with the level of care, diligence (effort), and skill level that the average reasonable person would be expected to offer.

A paid attorney has the higher standard of a person in the business of managing property of others (SDA ss.32(7)-(8)).

There is no statutory compensation for a POA for personal care.

Involving the Grantor

Power of Attorneys are responsible for making potentially life changing decisions for the grantor. It is important for the POA to establish a trusting relationship with the grantor by involving them within the decision-making process as much as possible. This includes:

• Maintain a stream of constant communication with the grantor and their family;
• Involve the grantor in decision-making to best of their abilities if possible;
• Consult supportive family who might be involved in the day-to-day care or contact with the grantor;
• Ensure that the grantor and POA are on “the same page” as to the duties and powers the POA owes the grantor

Removal of a POA or Guardian

Section 33(1) of the Substitute Decisions Act (SDA) outlines that Power of Attorneys /Guardians hold personal liability for any damages (money awarded for being wronged or for suffering loss) that result from a breach (violation) of duty. What does this mean?

Having personal liability means that you are personally responsible (accountable) for mistakes you make. In the context of being a POA or Guardian, this means that you are responsible for your actions in your role as a POA or guardian. If any loss of property (e.g. home, money, etc.) occurs due to specifically your actions, you will be personally responsible for paying any loss of money. Similarly, guardians/POAs will be held responsible for any action that puts an elder into harm.

For this reason, POAs/Guardians need to act responsible in their role. A POA/Guardian who can show that they have acted in a reasonable, honest, and diligent manner may be given relief from their liability (protection from accountability partly or completely) as indicated by s.33(2) of the SDA.

When a POA/Guardian acts deliberately (intentionally) or negligently (with a lack of care) in using their role for the wrong purpose, they may be found criminally responsible for breaking s.331 of the Criminal Code.

Acting deliberately or negligently can be reason for a judge ordering the removal of guardian or power of attorney.

DISCLAIMER: If you/your loved one is being abused physically and is in danger, please contact the appropriate authorities such as the police. The information on this website relates to the civil crime of financial elder abuse (Gale Law does not practice criminal law).

Ontario law presumes that an adult individual has capacity (mental ability) to make their own decisions.

Some indications that a person might not have the mental capacity to make decisions is if:

• The individual does not understand information that is relevant to the decision making process;
• The individual does not understand the potential consequences of their decisions

A decision-maker may need to be act for a person who may not have capacity to make their own decisions and this person would have these authority to do this through a guardianship application or a power of attorney (POA).

Assessing Capacity

Capacity can be assessed through a formal assessment (testing, aka a “capacity assessment”) completed by various professionals (experts) depending on the scenario. For instance:

The Ontario Public and Guardian Trustee (OPGT) governs “assessors” who have deemed to have the professional skill required to assess mental capacity. Here is a list of government approved assessors.

If you are interested in requesting a formal assessment for someone or yourself:

1. Directly contact an assessor to find one appropriate for you. Whether an assessor may be appropriate might depend on affordability, their availability, geographical area they work in, and their area of expertise
2. Be able to explain to the assessor what type and purpose of the assessment you are looking for. For example,
   a. An assessment for evidence in court;
   b. An assessment for a guardianship application
3. If an assessment for a guardian of property application, fill out the “Request for Capacity Assessment Form” and hand it to the chosen assessor.

It is important to note that you cannot force someone to undergo a mental capacity assessment if they do not wish to undergo one. It must be done voluntarily. The only exception to this is if the assessment has been court-ordered (meaning a judge has ruled that an assessment must take place).

What if I am concerned about someone’s well-being?

If it is an emergent and critical scenario that needs to be dealt with immediately, please call 9-1-1.

If this scenario does not need to be addressed right at this moment, then the following options are available:

• Invoke the POA or apply for guardianship for property or personal care
• Request a formal capacity assessment to be completed
• Contact the Ontario Public and Guardian Trustee to investigate
• Speak to a lawyer (at Gale Law we are knowledgeable in capacity disputes)