Giving Notice: Applications for Guardianship

October 27, 2017 Hull & Hull LLP Estate & Trust, Estate Planning, Guardianship, Hull on Estates, Uncategorized Tags: , , , 0 Comments

When considering the commencement of an application for guardianship, either guardianship of property or the person, keep in mind the extensive notice requirements under the  Substitute Decisions Act (“the Act”) contain extensive notice requirements.

An application for guardianship of property must be served on:

  1. the alleged incapable person;
  2. the person’s attorney for property under a Power of Attorney, if known;
  3. the person’s guardian of the person, if known;
  4. the person’s attorney for personal care under a Power of Attorney, if known;
  5. the person’s guardian of the person, if known;
  6. the Public Guardian and Trustee;
  7. the proposed guardian of property.

The above listed people are the parties to the Application.

In addition, application must be served by regular mail on:

  1. the alleged incapable person’s spouse or partner;
  2. the alleged incapable person’s children who are at least 18 (16 in the case of an application for guardianship of the person);
  3. the alleged incapable person’s parents; and
  4. the alleged incapable person’s brothers and sisters who are at least 18 (16 in the case of an application for guardianship of the person).

Similar service requirements apply to an application to terminate a statutory guardianship of property, a motion to terminate a guardianship of property, an application to appoint a guardian of the person, and a motion to terminate a guardianship of the person.

An exemption to the service requirements on family members is provided if the person’s existence or address cannot be ascertained by the use of reasonable diligence.

In addition to the Notice of Application, the applicant must serve the proposed guardian’s consent, a Management Plan, and a statement signed by the applicant indicating that the alleged incapable person has been informed of the nature of the application and their right to oppose the application, and describing the manner in which the person was informed. If it is not possible to so advise, reasons for not advising must be provided.

Failure to provide proper notice under the Act may lead to an adjournment of the proceeding in order to allow for service, causing further expense and delay.

In J.R.B. v. T.M.T., the court addressed the requirement that family members be served. There, the applicant was applying for guardianship of property for his wife, who was severely injured in a car accident. The applicant did not want to have to reveal his financial circumstances and those of his wife to her family members.  The family members agreed that this was not necessary, and consented to a waiver of the service requirements.  The Public Guardian and Trustee argued that service on family members was mandatory, and for the benefit of the incapable person, and could not be waived. The court held that the right to service was a right of the family members, and they could therefore agree to waive service.

It is implicit, however, that without such a waiver, service on known family members will be required.

Any person who is required to be served with the application materials is entitled to be added as a party to the application: s. 69(9) of the Act.

Have a great weekend.

Paul Trudelle

 

 

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