Category: Elder Law
Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity
Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.
Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:
- a sample power of attorney for personal care;
- a sample advanced health care directive;
- a sample personal directive;
- a sample ‘Dear Doctor’ letter; and
- a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.
Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.
What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.
Thanks for reading!
Earlier this year, our colleague Doreen So, blogged in two parts (here and here) on the matter of PGT v Cherneyko. It is a blog that discusses a litany of failures by an attorney for property. While Doreen covered the facts in full, they are worth repeating here in part:
“Jean Cherneyko is a 90-year-old woman. Jean did not have any children of her own. Her closest known relative was a niece in the US. By the time of the PGT application, Jean was in a long-term care home. Prior to that, Jean lived alone in the same home that she had lived in since 1969. Jean had a friend named Tina who she had known for about five years. On August 15, 2019, Jean and Tina went to a lawyer’s office. Jean named Tina as her attorney for property and personal care. Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate. A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina […]”
The PGT applied to take over as guardian for property and, among other things, to set aside the gift to Tina. The court agreed and ordered the $250,000 returned to Jean on the basis of resulting trust.
In a novel approach to the law of gifts, the court in Cherneyko relied on Pecore to establish that the gift ought to be returned, saying: “The leading Canadian case on the law of gifts, the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII) at paras. 24-26 established that where a gratuitous transfer of property is found, there is a presumption of a resulting trust. The onus falls to the recipient to rebut the presumption.” In the court’s view, Tina failed to rebut the presumption.
But this represents a new application of the Supreme Court’s analysis and it’s worth revisiting Pecore.
In 2007, Justice Rothstein, writing for a unanimous court (Justice Abella concurring) looked closely at gratuitous gifts of joint bank accounts, between parents and children, and whether the presumption of resulting trust and advancement applied in modern times:
“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.”
The decision in Cherneyko represents a significant expansion of the principles of Pecore by applying them to inter vivos gifts between unrelated adults. Traditionally, if the courts determine that a transferor lacked the requisite capacity, the gift is void as the transferor lacked the capacity to form the proper intention to gift. Ball v. Mannin, an almost 200-year-old UK case established the original test for granting a gift and held that a person had capacity if the person was “capable of understanding what he did by executing the deed in question, when its general purport was fully explained to him.” The Supreme Court has previously outlined a separate test in Geffen v Goodman Estate in 1991, examining the nature of the relationship itself, and applying a presumption of undue influence where there is the presence of a dominant relationship. While the failed gift in Cherneyko was ultimately returned under a resulting trust, it will be fascinating to see if other courts also continue this expansion of Pecore. We’ll keep you posted.
Thanks for reading!
Ian Hull and Daniel Enright
Technology is often considered as a tool more common among younger generations, with older individuals less likely to have embraced the internet and smartphones that, for many of us, have become important parts of our lives.
As lawyers know, the court system and legal profession have embraced technology in a number of new ways over the past year. From Zoom hearings to probate applications filed by email, we have had to adapt to better use technology in the practice of law. Recent news articles also suggest that the pandemic appears to be increasing the use of technology among older adults. In particular, the last ten months are noted to have seen:
- Acceptance of applications typically used primarily by millennials seeking convenience by other groups;
- For many, home delivery has become a “necessity”;
- Video chat has become a “lifeline for older adults”, who may otherwise be totally isolated;
- Increased accessibility to telemedicine and virtual caregiving support; and
- Online education for individuals of all ages, whether geared to enhance career potential or otherwise.
Many of these trends have the potential to assist seniors in aging in place during the COVID-19 pandemic, which no doubt has become an increasingly attractive option in light of the tragic situation at many long-term care facilities. Increased technology use by seniors is noted to be a positive that has emerged as a result of COVID to make independent living more comfortable and safer. There are also a number of online resources available with recommendations for seniors wishing to safely age in place, including this review of possible Home Modifications available through Family Assets, a resource for senior care.
It will be interesting to see how our use of technology continues to evolve to assist individuals at all stages of life during the pandemic and beyond.
Thank you for reading.
Who is ready for some good news? Our firm has been interested in the issue of organ donation for some time now. In 2012, we blogged about whether P.E.I. may be the first province in Canada to automatically enroll all of its people as organ donors until you chose to actively “opt-out”. In 2014 and 2019, we blogged about Nova Scotia’s efforts in this regard.
Today, we are happy to report that this is now the new reality in Nova Scotia as of January 18, 2021.
The Human Organ Tissue and Donation Act was passed in April, 2019. The Act, when it came into effect this Monday, meant that everyone in Nova Scotia are now considered to a potential organ donor until they “opt-out”. This new “opt-out” system is the first of its kind in North America according to the Huffington Post. Ontario, like everywhere else, has an “opt-in” program where you have to actively sign up in order to be considered as a potential organ donor whereas the “opt-out” system is the opposite of that. Nova Scotia is hoping that this will dramatically increase the rate of organ donation in the province like the 35% increase that has been noted in certain European countries.
In order to balance and respect the wishes of each individual, the director of the organ donation program has indicated that the known wishes of an individual will be respected even if he/she has not formally opted out.
This is an issue that is personally meaningful to me because of the statistics surrounding organ donors and organ recipients of colour. People of colour tend to be underrepresented within “opt-in” systems of organ donation. According to the Gift of Life, while race and ethnicity is not determinative of a match, a match is more likely to be found within one’s own ethnic community because of compatible blood types and tissue markers. 60% of patients waiting for a transplant are from communities of colour. I, myself, am registered with the Gift of Life and I can attest to how easy and painless it was to sign up.
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Right from the start, 2021 is starting to look like it will be another extraordinary year of historic significance. In the world of estates, trusts, and capacity litigation, there was a decision released on January 5th where serious breaches of fiduciary duty by an attorney for property were found and the PGT was ordered to take over. The facts in Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107, read like a law school case study and the reasons are worth noting.
Jean Cherneyko is a 90 year old woman. Jean did not have any children of her own. Her closest known relative was a niece in the US. By the time of the PGT application, Jean was in a long term care home. Prior to that, Jean lived alone in the same home that she had lived in since 1969. Jean had a friend named Tina who she had known for about five years. On August 15, 2019, Jean and Tina went to a lawyer’s office. Jean named Tina as her attorney for property and personal care. Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate. A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina, and $195,329.50 was transferred to Jean’s niece. Days later on August 31st, Jean was hospitalized for acute delirium and progressive cognitive decline. During Jean’s admission, Tina noted that Jean had become increasingly confused over the prior few months and that Jean exhibited lethargic behaviour and complained of bodily soreness. On September 1, 2019, Jean was diagnosed as being cognitively impaired. Thereafter, Jean was transferred to long term care on October 1st based on Tina’s authorization as Jean’s attorney for property. Short time after that, Tina’s son moved into Jean’s home and the PGT started to investigate in March, 2020 when the bank froze Jean’s accounts.
As a result of their investigation, the PGT brought an application to remove and replace Tina as Jean’s attorney for property. The PGT also sought to set aside the $250,000.00 transfer to Tina and the return of various other sums that were received by Tina, which totalled approximately $350,000.00.
First, the Court found that the transfer of $250,000.00 to Tina was not a gift. Tina failed to rebut the presumption of resulting trust for the gratuitous transfer. Tina put forth evidence that there was a bank manager who spoke to Jean at the time of the transfer, and that the banker told Jean that she would have still have enough money to live after the transfers to Tina and the her niece. This evidence was tendered through Tina’s affidavit without any direct evidence from the banker. The Court disregarded Tina’s reliance on the banker’s involvement because Tina herself had deposed that Jean was having “moments of delirium and irrationality, her condition fluctuated between lucidity and confusion” in late August, 2019 (para. 31) and there was no evidence that the banker was informed.
The Court also seriously questioned whether any of the payments to Tina were truly what “Jean wanted” because Jean’s power of attorney for property clearly stated that there was to be no compensation. The Court agreed with the PGT’s contention that Tina should not have paid herself $2,000.00 per month in compensation and on how that sum was unreasonably high given that Jean’s long term care costs were only $2,701.61 per month.
The value of the transfers, which was about a quarter of Jean’s net worth at the time, when considered in the context of Jean’s September 1st diagnosis also led the Court to find that Jean lacked capacity to gift Tina such a substantial sum.
The Court’s focus on context, timing, and proportionality as benchmarks in its analysis are very important for litigators and advisors to keep in mind.
Stayed tuned this week for Part 2 on Cherneyko: the breaches of fiduciary duty.
Thanks for reading,
In July, my colleague Paul Trudelle discussed the Virtual Signing of Wills, noting that in response to the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney.
On December 10, 2020, pursuant to Ontario Regulation 458/20: Extensions of Orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, virtual signing of Wills and Powers of Attorney have been extended until January 20, 2021 in Ontario.
Ontario Regulation 129/20: Signatures in Wills and Powers of Attorney among other things, provides the following:
1. The requirement for a testator or witness to be present in each other’s presence for the making of a Will (or Power of Attorney) may be satisfied by means of audio-visual communication technology, with certain restrictions.
2. “Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
3. At least one person who is providing services as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution of the Will (or Power of Attorney).
4. The signatures or subscriptions may be made by signing or subscribing complete, identical copies of the Will (or Power of Attorney) in counterpart, which together shall constitute the Will (or Power of Attorney).
5. For this purpose, copies of a Will (or Power of Attorney) will be considered identical even if there are minor, non-substantive differences in format or layout between the copies.
Thank you for reading.
Jennifer Philpott’s blog post on the Initial Recommendations from Ontario’s Long-Term Care COVID-19 Commission explains that the mandate of the Ontario Long-Term Care COVID-19 Commission (the “Commission”) is “to investigate how and why COVID-19 spread in long-term care (“LTC”) homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”
As noted in our previous blog post, Hull & Hull LLP recognizes and commends the Commission, led by the Honourable Justice Frank N. Marrocco, with John E. Callaghan and Kate McGrann as Commission Co-Lead Counsel, for their hard work and efforts towards protecting some of the most vulnerable citizens in our province.
Since the Commission’s First Interim Letter dated October 23, 2020, over 100 homes are experiencing an outbreak and more than 300 residents have died. On December 4, 2020, the Commission released their Second Interim Letter which focuses on resident care and on in-home leadership, and provides the Ministry of Long-Term Care (the “Ministry”) with various the following recommendations:
- Leadership and Accountability in Long-Term Care Homes
The Commission notes that the fundamental principle in the Long-Term Care Home Act states that
“A home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety, and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”
The Commission emphasized that leadership matters. They found that in homes where leaders were visible and provided clarity around staff roles and responsibilities fared better than those where the leadership was less engaged.
Amongst other things, the Commission found that there was confusion around who was responsible for maintaining resident quality of care in LTC homes during the pandemic and that it was unclear as to whose responsibility it was in the LTC home’s leadership team of the Executive Director, Director of Nursing and Personal Care and Medical Director. The Commission also found that these leaders were not always accessible or on-site.
The Commission recommended that there should be a clear lead for quality of care amongst the leadership team of the Executive Director, Director of Nursing and Personal Care and Medical Care in each LTC home, and that this individual must be on-site each day in a full-time position and should be held accountable for resident quality of care. Further, the Commission noted that the Province should provide the financial resources necessary to effectively support the lead for quality of care in carrying of their role and responsibilities.
- Performance Indicators
The Commission recommended using performance indicators to assess each home’s readiness to prevent and manage COVID-19 outbreaks. Specifically, the Commission found that while the current six clinical indicators tracked in the LTC home performance reports are a good first step in advancing transparency and flagging issues in LTC homes, this data does not provide other important insight on the quality of care received by residents and their experience in the home.
The Commission noted that indicators in areas of staffing (such as staffing mix, ration of residents to staff and ration of residents to staff with clinical expertise, level of staff engagement, etc.), PPE supplies and resident and family satisfaction with care at the home should be monitored and publically reported.
The Commission recommended that the LTC home performance reports should include performance metrics such as resident and family satisfaction, staff engagement, staging levels, and supply of PPE, as well as recommended that the home performance reports be publically posted in a single and centralized location and be updated more frequently, so that the public and other homes can assess and compare homes to one another as well as search and access a comprehensive picture of each home’s performance.
The Commission also recommended focused inspections to assess compliance with measures known to reduce the impact of the virus. Specifically, several issues have surfaced that the Commission believes require urgent attention, including:
1. The discontinuance of Resident Quality Inspections (“RQIs”) in all LTC homes
Although in 2013, the Ministry of Labour, Training, Skills and Developed (“MLTSD”) recognized that comprehensive inspections would help identify systemic issues and committed to completing an RQI in every home by the end of 2014, in response to the Auditor General’s 2015 recommendation “to prioritize comprehensive inspections based on LTC homes’ complaints and critical incidents and other risk factors”, in order to clear a backlog of almost 3,000 complaints and critical incident inspections, the Ministry introduced a risk-based approach to inspection. Although all LTC homes were still to be inspected every year, 329 LTC homes received an RQI in 2018, 27 homes received an RQI in 2019 and from March 1 to October 15, 2020 only 11 LTC homes received a proactive inspection. This reduction in RQIs, which are intended to provide a holistic review of operations in the homes, left the Ministry with an incomplete picture of the state of Infection Prevention and Control (“IPAC”) and emergency preparedness.
The Commission recommended to reintroduce annual Resident Quality Inspections for all LTC homes and require all reactive inspections occurring during the pandemic to include an IPAC Program review. The Commission also recommended that the Ministry request an appropriate funding in the upcoming 2021 provincial budget to hire and train inspectors to implement annual RQIs.
The Commission was also concerned with the lack of enforcement and follow-up verification of compliance with Orders issued by the Ministry. From 2018 to 2020, Plan of Care has been identified as the top area of non-compliance identified from complaint inspections. The Commission noted that IPAC issues rarely made it to the list of the top ten areas of non-compliances, showing that it was rarely a focus of any inspections.
The Commission recommended that the Ministry improve enforcement by prioritizing timely responses to non-compliance with IPAC and Plan of Care Orders.
3. Coordination of Inspections
The commission noted that there was an absence of a cohesive approach to inspections completed by the MLTC, MLTSD and Public Health Units, which likely occurred because inspectors from all three organizations tend to carry out their duties independently. This disjointed approached proved detrimental for IPAC in LTC homes and with the near elimination of RQIs and minimal inspections initiated by IPAC complaints or critical incidents, LTC inspections provided little help in proactively identifying and dressing aps in infection control inside homes.
The Commission recommended that steps be taken to eliminate the siloed approach to MLTC, MLTSD and Public Health inspections through cross-training, the establishment of a centralized system of report sharing and inspector teams to address specific cross-cutting issues.
Thank you for reading.
Ontario’s Long-Term Care COVID-19 Commission (the “Commission”) was formed in July 2020. The Commission’s mandate is “to investigate how and why COVID-19 spread in long-term care homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”
The Commission’s work is unique as it is conducting inquiries and providing recommendations to the Government of Ontario on an ongoing basis. Led by The Honourable Justice Frank N. Marrocco and Commission Counsel, John E. Callaghan and Kate McGrann, the Commission has met with over 200 individuals including experts, associations, unions, long-term care home operators, residents, families, and government officials. The Commission’s final report is due in April 2021.
The Commission’s First Interim Letter was released on October 23, 2020 and provided the following recommendations for the Ministry of Long-Term Care (the “Ministry”) to consider:
(1) Increase Staffing
Prior to the COVID-19 Pandemic, staffing challenges in long-term care facilities were well documented (for instance, in The Honourable Justice Eileen Gillese’s 2019 report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care System). The Commission recommends that the Ministry ensure that recruitment of long-term care staff focuses on diverse hiring practices to meet it’s residents’ acuity and complex care needs.
Further, the Commission recommends that more full-time care positions are created to increase stability amongst and retention of staff, which would further the continuity of care for residents. The Commission suggests that the Ministry implement the findings of its Long-Term Care Staffing Study, which was released in July 2020. These findings include providing at least four hours of direct care per resident per day and increasing funding to hire more nurses and PSWs to increase the staff to resident ration in long-term care facilities.
The Commission acknowledged that family members and caregivers play an essential role and provide “not just physical care needs but the psycho-social well-being of residents.” In that regard, the Commission recommends that long-term care facilities provide family members and caregivers “ongoing, safe and managed access to long-term care residents.”
(2) Strengthen Healthcare Sector Relationships and Collaboration
From its inquiries, the Commission uncovered that communities where long-term care facilities had pre-existing relationships with hospitals and public health units were better equipped to prevent or control COVID-19 outbreaks. On this basis, the Commission recommends that long-term care facilities likely to encounter difficulties (i.e. high infection rates in the community; past outbreaks; etc.) should implement a “collaboration model” between the facility, local hospital(s), and public health unit(s). The Commission’s letter urges the Ministry and the Ministry of Health to take a proactive approach and facilitate the collaboration model through defined supports and surge capacity for each long-term care home.
(3) Improve Infection Prevention and Control (“IPAC”) Measures
The Commission’s investigation revealed that adherence to IPAC measures is key in order to prevent community spread of COVID-19 into long-term care facilities and between staff and residents. The Commission recommends that long-term care facilities designate an IPAC lead. The IPAC lead would be responsible for monitoring, evaluating, and ensuring compliance with protocols. The IPAC lead would provide training to staff and access the local IPAC centre of expertise as necessary. The Commission strongly recommends that in the short term, inspectors from the Ministry, local public health unit(s), and others who can be trained should be sent into long-term care homes to ensure that proper IPAC protocols are being followed.
Residents of long-term care facilities are at a greater risk of contracting severe illness and death from COVID-19 than other populations. Consequently, the Commission suggests that residents and staff receive priority access to testing and faster results. If residents test positive for COVID-19, the Commission recommends that long-term care homes, hospitals, and public health units formulate plans to allow residents to transfer to an alternative setting in order to isolate from others and recover from the virus.
Hull & Hull LLP commends the efforts of the Commission for its proactive efforts towards protecting the most vulnerable citizens of our province. A follow-up blog will be released in the coming weeks summarizing the Commission’s recommendations from its Second Interim Letter.
Thank you for reading.
A recent CBC article demonstrates the importance of having a testator regularly review, or at least consider, their current estate plan to ensure that it conforms to their testamentary intentions, and the potential pitfalls of failing to do so or of failing to seek legal advice.
Eleena Murray, of Vancouver, British Columbia, died leaving a Last Will and Testament dated sometime in 2003. The Will provided cash legacies to various relatives, totaling approximately $440,000, and left the residue of Eleena’s estate to a charitable organization, the SPCA.
Although it is not clear, at the time the Will was drawn, it appears as if the residue of the Estate would have largely consisted of her interest in her house, situated in the Point Grey neighbourhood of Vancouver. Presumably, although it is unclear, the total value of all of the cash legacies was likely close to the fair market value of the house, such that Eleena intended to divide her estate roughly equally between the legatees and the charity.
However, in the years since the Will was drawn, the real estate market in Vancouver saw massive growth, with property values rising significantly, and the value of the residue of Eleena’s estate along with them. In 2017, perhaps recognizing what had become a considerable discrepancy between the values of the cash legacies and the value of the house, Eleena apparently drafted a handwritten note containing, among other instructions, an intention to limit the SPCA’s interest in her estate to a flat bequest of $100,000.
It is unclear whether the note was signed by Eleena or subscribed to by attesting witnesses (although two witnesses swore affidavits attesting to the fact that the note was prepared by Eleena). Eleena died only months later, without having amended her Will to reflect her purported intentions by way of the note. Although the value of the house, and therefore the residue of the Estate, increased significantly, Eleena never formally amended her estate plan.
Litigation has since ensued, with Eleena’s family members asserting that the handwritten note is a testamentary document that accurately represents her intentions.
Were this litigation taking place in Ontario, a court might find that the handwritten note would constitute a holograph will, assuming it was signed by Eleena. A holograph will is a will that is made entirely in the handwriting of the testator and signed by them, without the need for attesting witnesses.
In British Columbia, the analysis is slightly more nuanced. There is no equivalent provision under BC legislation that specifically recognizes the validity of holograph wills, as the Succession Law Reform Act does in Ontario. That said, British Columbia’s Wills, Estates and Succession Act empowers a court to make an order that a record purporting to be a will if the court is satisfied that the document represents,
- The testamentary intentions of a deceased person;
- The intention of a deceased person to revoke, alter, or revive a will; or
- The intention of a deceased person to revoke, alter, or revive a testamentary disposition in a document other than a will.
The court is equally empowered to make an order that a will that is not made in conformity with the applicable legislation is equally as effective as if it had been.
In the case at hand, the prevailing question will likely be whether the court is satisfied that the handwritten note accurately represents Eleena’s testamentary intentions. If so, the subsequent issue to be considered is whether the balance of the Estate that is not dealt with pursuant to the note passes by way of an intestacy, but that is a topic for another day.
Thanks for reading.
Prudent estate planning techniques frequently lead a testator or settlor to contemplate gifts or distributions to alternative beneficiaries to whom they do not necessarily intend to convey an express interest.
Often, these gifts-over are made in contemplation of a particular condition coming to pass – for example, where the intended beneficiary predeceases the testator. Failing to account for such instances could result in a lapsed gift (subject to the applicability of the anti-lapse provisions at section 31 of the Succession Law Reform Act), a partial intestacy, or, more generally, the conveyance of an interest to a person that the testator did not intend to benefit.
Although gifts-over are generally granted in favour of individuals of the testator’s choice, to maximize their control over their estate, that need not be the case. Gifts-over may be made in favour of individuals who may not yet have been born, such as the issue or lineal descendants of a testator’s young grandchildren. When litigation that impacts the interests of these unborn or unascertained beneficiaries arises, the first questions that ought to come to a litigator’s mind are who should be appointed to act on their behalf, and how should that appointment be achieved?
One’s mind might immediately jump to the appointment of a litigation guardian. In the case of a beneficiary who is a minor, that would be correct. Pursuant to Rule 7 of the Rules of Civil Procedure, a party under disability (which would include a minor) must be represented by a litigation guardian. Furthermore, the Children’s Lawyer is the presumptive litigation guardian for all minors unless and until another individual files an affidavit following specific criteria set out at Rule 7.02.
However, where the interests of an unborn or unascertained person or class of persons is concerned, recent direction from the Children’s Lawyer suggests it is Rule 10, not Rule 7, that guides us. Rule 10.01 empowers a judge to appoint a person to represent “any person or class of persons who are unborn or unascertained” who have a present, future, contingent, or unascertained interest in the subject matter. Strictly speaking, an unborn or unascertained individual is not a person under disability or a minor as defined under the Rules, and so a litigation guardian, although filling a similar role as a representative, should not be appointed.
As a point of practice, a party seeking a representation order would be well advised to serve the Children’s Lawyer whether or not the applicant is seeking to have the Children’s Lawyer act as representative, or whether another individual is seeking that appointment. Although Rule 10 differs from Rule 7 in that the latter requires the Children’s Lawyer to have notice of any motion to appoint a litigation guardian while the former does not in the context of a representation order, it is nonetheless recommended that the Children’s Lawyer be given notice to ensure the interests of the unborn beneficiaries are appropriately represented.
Thanks for reading.