Last week I had the pleasure of attending Osgoode PD’s Powers of Attorney and Guardianship: Non-contentious and Contentious Matters module, which is a part of Osgoode PD’s Intensive Program in Wills & Estates. This course was moderated and chaired by our very own, Ian M. Hull and Suzana Popovic-Montag, and featured an array of fantastic presentations led by Bryan Gilmartin of WEL Partners LLP, Holly LeValliant (senior trust officer with Scotiaweath), Alexandra Mayeski of Goddard Gamage LLP and Kimberly A. Whaley of WEL Partners LLP.
Incapacity Planning and Powers of Attorney
The course began with Bryan Gilmartin’s overview of Ontario’s Substitute Decision Act (“SDA”) and the legislative standards of capacity in respect to property and personal care, with a focus on the ever growing need for incapacity planning.
As there is no single legal definition of capacity, but rather, legislative capacity standards, whether a person has the requisite mental capacity to make decisions can be situation specific, time specific, and task specific. The capacity standards in respect to property and personal care are found under section 6 and section 45 of the SDA whereby a person is considered incapable of personal care and/or of managing property if:
- He or she cannot understand information relevant to the type of decision to be made; or
- He or she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
To properly plan for incapacity, it is recommended that an individual executes a Power of Attorney for Property and a Power of Attorney for Personal Care. It is the responsibility of the drafting lawyer to ensure that the grantor is well informed as to the scope of legal authority each document can award an attorney depending on how they are drafted, including the various ways in which a grantor can control when a Power of Attorney takes effect.
Guardianship Applications
In the event an individual did not plan for incapacity, Holly LeValliant described the process of commencing a Guardian Application through the Superior Court of Justice. The purpose of a Guardianship Application is to obtain a court order appointing a Guardian to manage an incapable’s finances and/or personal affairs. This is a stringent process that involves a quantum shift in an individual’s liberty and accordingly has earned a high level of evidentiary expectation from the Court. This includes sufficient evidence to support a finding of incapacity as well as evidence of the Guardian’s intention to manage the incapable’s property and/or person with the best interest of the incapable at the forefront of every decision.
Rights and Obligations of Attorneys and Guardians
Alexandra Mayeski then took us through the legislative requirements under the SDA in respect to the rights and obligations of Attorneys for Property and Guardians of the Person. Although it can be an onerous duty, it is of paramount importance that an Attorney and/or Guardian ensure that there is ongoing communication with an incapable’s family members as well as a diligent accounting record of decisions made on the incapable’s behalf. Consideration should always be given to section 66(4) of the SDA which codifies the best interests analysis that a Guardian and/or an Attorney is obligated to consider in advance of any decision that is being made on behalf of the incapable.
Contentious Guardianship Applications and Removals of Attorneys and Guardians
In the final segment of the course, Kimberly A. Whaley discussed an array of legal principles derived from case law in the context of contentious guardianship applications. The Court has recognized that the purpose of a guardianship application is to benefit the incapable person and therefore a successful application should demonstrate the most suitable plan for the incapable which includes a plan that is grounded in the incapable’s best interests.
The removal of an Attorney and/or Guardian will require strong evidence of misconduct or neglect and includes the overarching consideration to the best interests of an incapable person and whether such interests are being adequately served by the Attorney and/or Guardian.
Thank you for reading,
Nicole Cianci