The Office of the Public Guardian and Trustee and Guardianship Applications
The other day I blogged on The Office of the Public Guardian and Trustee (“OPGT”), and the various roles it fulfills in its protection of incapable Ontarians. One such role is reviewing management plans for property guardianship applications. Dermot Moore, Litigation and Senior Client Counsel at the OPGT, has instrumentally addressed this subject area in his paper entitled “The Annotated Guardianship Application – The View From the Office of the Public Guardian and Trustee”. Some take aways I found helpful to keep in mind include:
- Bonds – Right off the bat, consider the issue of whether a bond is possible for the proposed guardian to get in the event that a court requires it. Further, if a surety company is needed to obtain the bond, consider that the surety company may deny a bond to a guardian with a poor credit history. Additionally, some companies will require several years of fees in advance and/or place time limits on the duration of the bond. Finally, if you are asking the court to dispense with the bond requirement, if there are no other issues with the proposed management plan, you can expect that the OPGT will not oppose the request.
- No no’s – Though these may seem obvious, given their increasing prevalence as noted by Mr. Moore, some no no’s in guardianship applications are worth mentioning. 1. Do not omit the management plan from the court material – it is essential to the application. 2. Do not lump assets together. Follow the management plan form, which allows for each asset to be addressed separately. 3. Do not leave sections blank. If there are no assets for a particular heading, indicate as much. 4. Do not leave the management plan unsigned.
- Real property – When addressing real property in a management plan, ensure that title to the property is not changed to be held jointly with others or in trust. The property should be held solely in the incapable person’s name. If the property is going to be sold, the plan ought to set out that the guardian will obtain at least one (or two, ideally) estimates of value. The investment plan for the proceeds of sale should also be addressed.
- The benefit must be for the incapable person – Of course, the incapable person’s assets are to be used for their benefit alone. So plans that propose dividing the assets during the incapable person’s lifetime will be scrutinized. While gifts and loans are permitted if the person made such gifts and loans prior to incapacity and if they can afford to continue to do so, such items will surely be questioned and possibly opposed by the OPGT depending on the circumstances of each case.
Thanks for reading and have a great day,