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Capacity to Manage Finances and Property and Strategies when Capacity is Impaired
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
The purpose of this paper is to provide a primer on issues that will commonly confront individuals faced with the possibility that a friend, relative, loved one, or even themselves, may not be capable of managing their own financial affairs. More specifically, this paper discusses the options available when the person suspected of being incapable has not executed a Power of Attorney for Property while capable, and thus has not legally appointed an attorney to manage his or her affairs while he or she is incapable.
As is noted below, assuming responsibility for the financial affairs of another person is not a trivial undertaking and should not be entered into lightly. It is a tremendous responsibility that carries with it the obligation to balance the incapable person’s needs against their wishes. In the context of an individual with a traumatic brain injury a guardian of property may well be confronted with behavioural issues on the part of the incapable person such as anger management, impulse control, impaired judgment, substance use/abuse that will make the task of establishing a functional relationship with the incapable person difficult which will, in turn, greatly complicate the task of managing the individual’s property on his or her behalf.
If there is a common thread that joins the various topics discussed below it is that a decision to become a guardian of property on behalf of another person should always be carefully considered. In particular, the prospective guardian must consider carefully whether he or she will be able to develop a functioning relationship with the incapable person. Absent such a relationship it will be nearly impossible for the prospective guardian to fulfill their multitude of responsibilities which include, but are certainly not limited to, ascertaining all property owned by the individual and all potential sources of income as well a the individual’s wishes with respect to the quality of life they desire.
The body of this paper discusses the duties and powers of a guardian of property, the procedural steps that must be followed in applying to become a guardian of property and issues that might arise from an obligation on a guardian of property to post security. Attached to this paper are an Annotated Form 1 – Application to Replace the Public Guardian and Trustee as Statutory Guardian of Property and an Annotated Form 2 – Management Plan, which provides more detail as to the information a prospective guardian of property will be expected to provide in support of their application.
DUTIES OF A GUARDIAN OF PROPERTY / THE RIGHTS OF AN INCAPABLE PERSON
Removing a person’s right to manage their own financial affairs – to buy and sell property as they desire, to pay their own bills, to do their own banking and to buy food, shelter and services as they deem fit – represents a significant infringement upon that person’s liberty and it is not an action that is viewed lightly by either the courts or the Legislature.
The duties and powers of a guardian of property are comprehensively described in the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). However, the SDA does not merely prescribe what a guardian of property must do or may or may not do, rather it codifies the notion the incapable person’s rights remain the single most important factor governing the management of his or her financial affairs. The mere fact that a person is no longer capable of managing their day to day financial affairs does not render them without rights and certainly does not render their choices and opinions with respect to their daily affairs moot. On the contrary the general scheme of the SDA is to ensure that to the greatest extent possible the wishes of the incapable person, in addition to their needs, are given effect.
It is therefore suggested that the responsibilities of a guardian of property are most properly viewed through the lens of the rights of the incapable person as opposed to the rights and powers of the guardian. While this is seemingly an argument in semantics it is submitted that the obligations of a guardian and the underlying intentions of the Act are best accomplished if the rights of the incapable person remain the first and foremost focus of the guardian and the powers of the guardian are merely viewed as aids to protecting and asserting the rights of the incapable person.
Support for this paradigm is found in sub-section 32(1) of the Act which states that a Guardian of Property is
…a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit (emphasis added).
Further, particular emphasis should be given to the fact that, as a matter of law, a guardian is obligated to exercise his or her powers for the incapable person’s benefit. The Office of the Public Guardian and Trustee (the “PGT”) describes the obligations of a Guardian of Property as follows:
…extreme harm can result to the incapable person and to others if the guardian does not act diligently and honestly. Therefore, the highest standards of honesty, integrity and trust are demanded from the guardian.
It is the needs of the incapable person and that person alone, and more particularly their quality of life, that a guardian must be cognizant of in exercising his or her powers. Indeed the Act demands that if a guardian’s decision will have an effect on the incapable person’s comfort or well-being, “…the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit. (emphasis added).”3
In this regard the PGT suggests that a guardian of property:
…must consider the personal comfort or well being of the incapable person in determining whether any financial decision or transaction is for the incapable person’s benefit.4
The PGT goes on to state that a guardian of property’s most important goal in performing his or her duties is to, “…maximize the quality of life of the incapable person.”5
Also consistent with the notion that the incapable person’s right to retain a voice in their affairs must be of central importance to any guardian, the Act imposes upon a guardian of property the obligation to, “ …explain to the incapable person what the guardian’s powers and duties are”6 and further, “….to encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property.”7
Finally the Act states that a guardian shall manage a person’s property “… in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions (emphasis added)”. 8
This last point is extremely significant because it must be remembered that the situation may well exist, particularly in cases where a person’s inability to manage their own financial affairs arises as a result of a mild traumatic brain injury, where the incapable person remains capable of making their own decisions regarding personal care. Accordingly, in such a situation the guardian of property is obligated to manage the incapable person’s financial affairs in a manner consistent with the incapable person’s own decisions regarding his or her personal care.
This last obligation does not apply if a decision concerning the incapable person’s personal care will have adverse consequences in respect of the incapable person’s property and the adverse consequence in respect of the person’s property, “…significantly outweigh the decision’s benefits in respect of the person’s personal care.” 9
The PGT provides the following illustrations regarding the interaction of these two parts of the Act.
For example, if the [incapable person] wants to live in a certain place and can afford it, it would be [the guardian’s] duty to arrange to pay for this choice of residence. If the [incapable person] wants to take a vacation and can afford it, it would be [the guardian’s] duty to make arrangements and pay for it….[However] the person may want to remain living in his or her own house, but may require 24 hour care and not have enough money to pay for it without selling the house and moving to another residence. In that case, the need to sell the house in order to have enough money to pay for the person’s care may heavily outweigh the person’s wish to remain living in the house.10
I suggest that a guardian must exercise a great deal of caution when they are compelled to enter into this decision making process. In the above-noted example provided by the PGT the options available to the guardian are fairly clear cut. Presumably there would be objective medical documentation available to verify the need for 24 hour care and the benefits of 24 hour care to the incapable person would likely be readily apparent. Indeed the person’s very life might be in jeopardy without 24 hour care. Accordingly, in this scenario there is very little debate about what the correct course of action is.
However it is submitted that a guardian of property might well be confronted by less clear cut decisions and, as stated above, a guardian will then have to consider carefully what factors they consider when balancing the needs and wishes of an incapable person. What, for example, should a guardian of property do if an incapable person chooses to live on the street, as opposed to at home? What if an incapable person has issues with addiction or substance abuse? Should a guardian of property then use the person’s property as a “carrot” or “stick” in an attempt to modify the incapable person’s behaviour? Should funds be withheld from the incapable person if they insist on living on the street? What if an incapable person chooses to move hundreds of miles from their hometown because of ongoing conflict with family members? Should the guardian of property refuse to pay for the incapable person’s relocation because he or she believes it is in the best interest of an incapable person to remain in close proximity to their family?
It is submitted that a guardian of property must always be mindful of the fact that the property in question is, and always remains, the property of the incapable person. Further, it is suggested that if a person remains capable of making their own decisions with respect to their personal care then their right to make decisions, including bad decisions, remains inviolate.
If an incapable person’s decisions with respect to personal care (i.e., living on the street, engaging in substance use and/or abuse) threaten their property, in the sense that they are making decisions that may very well result in their assets being completely dissipated in short order, rendering themselves incapable of providing for their own care, education and well-being, then, it is suggested, there is an obligation on the guardian of property to balance the incapable person’s needs with that person’s right to have a voice in the use and management of their own property. However it is also suggested that a guardian of property must be able to distinguish between genuine concern for the proper management of an incapable person’s property and moral or ethical disapproval of an incapable person’s conduct.
If a guardian of property has concerns about an incapable person’s ability to make decisions regarding his or her personal care then there are options available to the guardian of property in terms of having the person’s capacity for personal care assessed (if the individual consents) or bringing an application to the court to have someone named as the individual’s guardian of property. Having said that, until such time as the individual has been determined to be incapable of managing their personal care, their decisions regarding their personal care must be respected.
For these reasons it is suggested that any person considering becoming a guardian of property should ensure they are well acquainted with all the circumstances of the incapable person’s life, particularly who is responsible for making decisions regarding the individual’s personal care, and what some of the major decisions in this regard are likely to be and then should consider carefully whether they believe they will be able to develop a functional relationship with the incapable person and adequately fulfill their duties as prescribed by the Act.
A guardian of property is also required to keep account of all transactions involving the property and may, from time to time, be required to provide a passing of the accounts.
Powers of a Guardian of Property
The statutory powers bestowed upon a guardian of property are considerable. The SAD provides that a guardian of property possesses the following powers:
How is a person appointed as a Guardian of Property
A guardian of property is only appointed in cases where an incapable person did not execute a Power of Attorney for Property while capable or where the incapable person did execute a Power of Attorney for Property but, in doing so, did not give the named Power of Attorney complete control over all of his or her financial affairs.
In cases such as this, upon a finding, by a licensed capacity assessor, that the individual is incapable of managing his or her financial affairs, and in the absence of a valid Power of Attorney assigning complete authority over the incapable person’s property to another individual, the Office of the Public Guardian and Trustee is automatically the incapable person’s guardian of property.
In these cases, as the individual is no longer capable of managing his or her properties it is necessary to appoint a Guardian of Property. The power to appoint a Guardian of Property comes from the Substitute Decisions Act (“SDA”) and is bestowed upon the courts and the Office of the Public Guardian and Trustee (“PGT”).
In general ways the two ways in which a person may be appointed a guardian of property for an incapable individual are either by making an application to the court or by making an application directly to the PGT. Generally an application directly to the PGT is likely to be a less expensive and more efficient way of proceeding. However this route is not available in all circumstances where an individual seeks to be appointed as a guardian of property for an incapable individual.
Application Directly to the Office of Public Guardian and Trustee to Substitute the PGT as Statutory Guardian of Property
An application directly to the PGT to replace the PGT as an incapable person’s guardian of property is likely a far less expensive and more efficient way of proceeding than a court application. However this course of action is not available in all cases where a person seeks to become the guardian of property for an incapable individual.
This route is only available if the PGT is the incapable person’s statutory guardian of property. The PGT becomes an individual’s statutory guardian of property upon receiving a certificate of incapacity in the prescribed form (also known as a Form “C”) that has been completed by a certified capacity assessor.16
Anyone may request that a capacity assessor perform an assessment of another individual’s capacity (or of their own capacity) to manage their financial affairs. However, an assessment can only be lawfully requested if the individual makes reasonable inquiries and has no knowledge of the existence of any attorney being appointed under a continuing power of attorney executed by the individual in question and upon making reasonable efforts to determine if any spouse, partner or relative of the individual intends to make an application to court to be appointed guardian of property for the individual. Further an assessment can only be conducted if the individual in question consents to participating in the assessment.17
Upon a finding by the assessor that an individual is incapable and upon the assessor issuing a certificate of incapacity and giving a copy of the certificate to the PGT, the PGT, by statute becomes the individual’s statutory guardian of property.
The SDA provides that the only the following individuals may make an application directly to the PGT to replace the PGT as an individual’s statutory guardian of property:
1. The incapable person’s spouse or partner.
2. A relative of the incapable person.
3. The incapable person’s attorney under a continuing power of attorney, if the power of attorney was made before the certificate of incapacity was issued and does not give the attorney authority over all of the incapable person’s property.
4. A trust corporation within the meaning of the Loan and Trust Corporations Act, if the incapable person has a spouse or partner who consents in writing to the application. 18
Accordingly if the individual seeking to become guardian of property for another individual does not satisfy one of the above-noted criteria it will be necessary to proceed by way of an application directly to the court. Further, as noted above an individual does not have to consent to undergoing a capacity assessment.
If a prospective guardian of property requests that an assessor perform a capacity assessment, and the individual in question refuses to participate, the assessment it will not be completed. In that case the PGT would not become the individual’s statutory guardian of property and it will not be possible for a guardian of property to be appointed by way of application directly to the PGT. Rather, it will be necessary for any concerned person to bring an application to the court and prove the individual in question’s incapacity and satisfy the court that a guardian of property should be appointed.
An application directly to the PGT is completed by submitting two mandatory forms: a Form 1 – Application to Replace the Public Guardian and Trustee as Statutory Guardian of Property by a Person Authorized to Apply Under Subsection 17(1), and a Form 2 – Management Plan. Blank and annotated copies of these forms are provided with this material.
With respect to the Form 1 one of the most important issues to note is the requirement that the applicant disclose the name and contact information of any other person authorized by subsection 17(1) to apply to replace the PGT as the individual’s statutory guardian (ie. The individual’s spouse, other relatives, or an attorney appointed by a continuing power of attorney executed by the incapable person when he or she was capable). Further the applicant is required to discuss the application with each of the authorized individuals and to inform the PGT as to whether each authorized individual supports or opposes the application.
It is suggested that in completing this application discussions with other authorized individuals should be substantial. While there are no specific requirements as to what information an applicant must be provided to other authorized individuals common sense dictates that they will have to be well informed as to the nature of the application before they are able make an informed decision as to whether they support or oppose the application. Accordingly it is suggested that any potential applicant consider providing all other authorized individuals with a copy of the Management Plan and satisfy themselves that the other authorized individuals have reviewed it and are supportive of the application before indicating this on the Form 1.
Further it is suggested that absolute candor is required of any person making application of this nature. Accordingly if another authorized person indicates that they have no interest in the application or are any way ambiguous as to their position the applicant should indicate to the PGT that they are unable to ascertain the person’s position, as opposed to indicating that the person supports the application. In instances where an applicant indicates that they are unable to ascertain whether another authorized person supports or opposes the application the PGT may make inquiries in an attempt to satisfy itself as to the person’s position with respect to the application.
In the event there is opposition to the application by other authorized individuals or there are competing applications submitted the PGT will not attempt to resolve the conflict or choose between the applications. Rather, the PGT will advise the respective parties to bring court applications so that a full hearing of the issues can be take place and the merits of each application weighed by the court.
With respect to the Form 2 – Management Plan, as will be seen in the copies provided, an applicant needs to provide a detailed listing of all of an incapable person’s assets, income, debts and liabilities in the prescribed form and also provide a detailed plan as to how they propose to manage each of the above-noted assets, income, debts and liabilities.
Care should be taken to ensure that the instructions on the Form 2 and the guides provided by the PGT to assist in completing the Form 2 are read carefully and that each asset or liability is listed in the correct section of the Form 2 – Management Plan.
While the PGT may not reject an application simply because a particular asset is listed in the wrong section, so long as the asset is listed with sufficient detail and a detailed plan of management is provided for the asset, the application process will likely go smoother and proceed faster if the form is completed in the correct manner.19
The Management Plan is the central feature of an application to become a guardian of property, regardless of whether the application is made directly to the PGT or to the court. It is the document that reveals the prospective guardian’s intentions with respect to the incapable person’s property and if a guardianship application is approved the guardian of property must manage the incapable person’s property in accordance with the plan proposed in the Management Plan.
Given the importance of the Management Plan it is surprising that counsel for the PGT reports that many applications are received with incomplete Management Plans or no Management Plans. It is suggested, given the importance of the Management Plan, that a prospective guardian consider consulting not only with a lawyer experienced in these matters, but potentially a financial planner and an accountant while completing the management plan
Application to Court
The court has the power to appoint any person as a guardian of property for an incapable person. The court application process is likely to be more expensive than an application directly to the PGT and is more likely to be utilized in the following circumstances:
1. The individual in question does not agree that they are incapable of managing their own property, and does not consent to a capacity assessment;
2. The person seeking to be appointed guardian of property is not permitted, by virtue of the SDA, to make an application directly to the PGT;
3. There is a dispute between the incapable person’s relatives, spouse and / or attorney named in a continuing power of attorney as to who should be the individual’s guardian of property
4. A statutory guardian of property has already been appointed and another person seeks to have that individual removed as guardian of property and replaced by the applicant.
5. The PGT has declined an application to substitute the PGT as statutory guardian of property.
An application to court is commenced by serving and filing a Notice of Application, the form and content of which are prescribed by the Rules of Civil Procedure. In addition to the Notice of Application the following documents must also be served and filed:20
(a) the proposed guardian’s consent;
(b) if the proposed guardian is not the Public Guardian and Trustee, a plan of management for the property, in the prescribed form (Form 2 – Management Plan); and
(c) a statement signed by the applicant:
(i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or
(ii) if it was not possible to give the person alleged to be incapable the information referred to in subclause (i), describing why it was not possible.
Note that s. 69 of the SDA prescribes that the following individuals must be served with a Notice of Application:
Service on the children, parents and/or siblings of the allegedly incapable person is not required if the existence of said individuals or their addresses cannot be ascertained by the use of reasonable diligence.
It should be noted that the PGT is permitted to opine on any aspect of an Application it is concerned with, including perceived deficiencies with respect to service. Further it should be noted that if there are issues with respect to service there is good reason to believe that the PGT will bring these issues to the court’s attention and may very well oppose the application on these grounds.21
When a person seeks to be appointed guardian of property by way of a court application the matter can proceed by way of an actual hearing or by way of summary disposition. When an actual hearing is held witnesses appear and give evidence before the judge.
When a matter proceeds by way of summary disposition the judge reads the written material filed with the court and approves or dismisses the application solely on the basis of the written information provided. The summary disposition method of proceeding is only available if:
If an individual refuses to consent to undergoing a capacity assessment it will be necessary for any concerned person seeking to be named guardian of property for the individual to appear in court and adduce evidence sufficient to convince a judge that the individual in question is not capable of managing his or her property.
Posting of Security
Regardless of whether a person seeks appointment as a guardian of property by way of application directly to the PGT or by way of an application to the court they may be required to post security. If the value of an incapable person’s property is significant it is almost certain that either the PGT or the court will require the guardian of property to post security. If proceeding by way of an application to the court, as noted above, the Applicant is required to serve notice of the application on the PGT. In these cases the PGT is entitled to provide its opinion to the court as to whether the guardian of property should be required to post security.
This is an important issue because the most common form of security posted is that of a security bond.22 The PGT suggests that if an applicant has minimal assets of their own and minimal income, has a poor credit history or a history of bankruptcy (regardless of whether they are a discharged or undischarged bankrupt) they may have considerable difficulty getting a security bond.23
Any person considering applying to become a guardian of property should carefully consider before submitting their application whether they will qualify for a security bond. The PGT suggests that practice in the surety industry is not helpful in this regard as some, and perhaps most, surety companies will not tell a prospective guardian whether they qualify for a bond until “…they show upon in the bonding company’s office with a court order in hand”.24
In cases where the value of property is substantial, such as where there has been a significant settlement of a personal injury action it will almost certainly be necessary to enlist a trust company to act as a co-guardian of property. In cases of substantial assets to manage it would likely only be a financial institution that could post sufficient security (sufficient security is usually deemed the total value of the incapable person’s assets).
It should also be noted however that trust companies have certain criteria that must be fulfilled before they will consent to act as a co-guardian of property. In one instance I was advised that the trust company would not agree to act unless there was a minimum of $1 million in assets to manage. The PGT, however, will certainly require a security for assets much lower than $1 million (as low as $50,000 if the applicant is not the incapable person’s spouse).
Accordingly there will be cases where it will likely not be possible, nor practical, to have a trust company act as a co-guardian of property simply for the purpose of being able to post security. In these cases, where a prospective guardian is concerned about their ability to post security, the only other option may be to seek another person, capable of posting security, to step in as a co-guardian of property.
The PGT tries to ensure a consistent approach is taken with respect to the issue of whether security should be posted.25 Accordingly it has internal policies with respect to the circumstances under which it will require or, advise the court, that security should be posted. A prospective guardian or their lawyer should contact the PGT and ask for the most up to date information regarding PGT policies in this regard so they can anticipate if security will be required. Notwithstanding internal policies regarding the issue of security the PGT maintains the flexibility to deal with each application on a case by case basis as, “all cases are different and present different facts for consideration”.26
It is suggested that if significant concern exists as to whether a prospective guardian will be able to post sufficient security and no other person can be found to act as a guardian of property or co-guardian of property advice should be sought from the PGT about any possible alternative courses of action.
The PGT is the “guardian of last resort” and will only act as a guardian of property if no other suitable person is willing to do so. In the event the ability of the prospective guardian to post adequate security appears to be the only issue with respect to being appointed a guardian of property the matter should at least be discussed with the PGT so any and all possible solutions can be explored.
 s.6, Substitute Decisions Act, 1992, S.O. 1992, c. 30 (hereinafter “SDA”)
Office of the Public Guardian and Trustee, Duties and Powers of a Guardian of Property, 2000 (hereinafter “Duties and Powers”).
3 SDA, s. 32(1.1)
4 Duties and Powers, supra.
6 SDA, s. 32(2)
7 SDA, s. 32(3)
8 SDA, s. 32(1.2)
9 SDA, s. 32(1.3)
10Duties and Powers ,supra.
11 s. 31(1), SDA
12 Duties and Powers, supra.
13 s. 31.1, SDA
14 s. 33.2(1), SDA
15s. 33.2(3), SDA
16 s. 16, SDA
16 s. 78, SDA
18 s. 17(1), SDA
19 D.C.G. Moore, The Annotated Guardianship Application: The View from the Office of the Public Guardian and Trustee, The Annotated Guardianship Application, The Law Society of Upper Canada, Continuing Legal Education (hereinafter “Moore”).
20 s. 70, SDA
25 Moore, supra.
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