Being appointed as an incapable person’s guardian of personal care and property is a serious responsibility. Since such an appointment eliminates an incapable person’s autonomy, Courts are vigilant and will discriminate between those applicants who have carefully considered and adhered to the statutory requirements under the Substitute Decisions Act and those who have not filed sufficient evidence to make a guardianship order.
Laxton v. Laxton, 2025 ONSC 3138 is one such case in which the Applicants were granted guardianship of personal care over J but were required to file additional evidence and written submissions respecting the guardianship of J’s property.
The facts in Laxton are straightforward. The Applicants, being J’s husband and son, filed a supplementary application record and factum seeking to dispense with the posting of security and defer the passing of accounts. J and her husband had been married for many decades, and they had two sons, one of whom sought to be appointed as joint guardian of property along with J’s husband. The other son consented to the relief.
The following four issues were addressed by the Court:
Was J Incapable of Managing Property?
The Court found that J was incapable of managing her property. Relying on a capacity assessment and other “additional evidence available,” the Court accepted the capacity assessor’s conclusions that there was “clear and compelling evidence” that J lacked both insight into her financial circumstances and the skill required to meet the demands of managing her finances. The answers J had provided during her interview indicated that she was having difficulty understanding financial information.
Were the Applicants Suitable to Act as Joint Guardians of Property?
There was very little question J’s husband and son had the knowledge and skills required to manage J’s finances. The Court noted that J’s husband, who continued to reside in a separate unit in the same apartment as Josephine, was an experienced financial advisor by trade and had managed both his and J’s finances well over time. J’s son also lived near J and her husband and could assist when required.
Was Posting of Security Required?
The PGT, while acknowledging there is no requirement under the Substitute Decisions Act, highlighted in its responding letters recommended that security should be posted where the assets of an incapable person exceeded $250,000 or, where the assets include real estate, $500,000.
The Court concluded that the manner in which J and her husband had arranged their estate planning and provided financial support to their sons indicated there was “little, if any risk” that the Applicant would mismanage J’s assets. The family members were “close and trusting of each other” and the Applicants could act as a “check” on the other. If there were issues, the posting of security could be addressed when the Applicants pass their accounts.
When Would the Applicants Be Required to Pass Accounts?
The Court accepted the PGT’s recommendation that the Applicants be required to pass their accounts no later than six months after the two-year anniversary of the date of their appointment.
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