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:
- the alleged incapable person;
- the person’s attorney for property under a Power of Attorney, if known;
- the person’s guardian of the person, if known;
- the person’s attorney for personal care under a Power of Attorney, if known;
- the person’s guardian of the person, if known;
- the Public Guardian and Trustee;
- 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:
- the alleged incapable person’s spouse or partner;
- the alleged incapable person’s children who are at least 18 (16 in the case of an application for guardianship of the person);
- the alleged incapable person’s parents; and
- 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.
An Attorney for Personal Care and a Guardian of the Person is statutorily mandated under section 66(3) the Substitute Decisions Act, 1992 (the “SDA“) to make certain decisions in the incapable person’s best interests if the incapable person’s wishes and instructions are unknown or if it is impossible to act in accordance with those wishes and instructions.
A component of the best interests analysis, as set out in section 66(4), includes considering whether the guardian’s decision is likely to,
“i. improve the quality of the person’s life,
ii. prevent the quality of the person’s life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.”
Given that improving the quality of a person’s life and preventing their quality of life from deteriorating are two sides of the same coin, there is exciting and heart-warming new technology which uses Google Street View to treat Alzheimer’s patients.
This new technology is a prototype called BikeAround. BikeAround is essentially a stationary bike that stimulates the experience of, literally, biking down memory lane for an Alzheimer’s patient. The patient is placed on a stationary bike which faces a projection of his/her familiar hometown streets from Google Street View. The experience is intended to prevent memory loss by bringing to mind locations that are associated with the patient’s memories. The simultaneous physical stimulation from the act of biking is also considered to be a crucial component of the benefits from this new technology.
Anne-Christine Hertz is the biomechanical engineer who developed BikeAround.
This video on Hertz’s research is not to be missed.
Thanks for reading!
The duties of a fiduciary must be performed diligently, with honesty and integrity and in good faith, for the benefit of the recipient. Whether a fiduciary can prove that he or she has complied with these duties will depend to a great extent on the ability of the fiduciary to account. While the duty to account is not debatable, the Court may consider the specific circumstances of the fiduciary when evaluating whether their actions are appropriate.
In Christmas Estate v Tuck  OJ No 3836, the executor disputed numerous cheques for the benefit of the attorney for property and other cash gifts that she was unable to substantiate with receipts or vouchers. The Court held that it would be inappropriate to impose strict accounting requirements where the parties had a “close family relationship”, in this case, mother and daughter.
The Court further declined to draw a negative inference when the attorney was unable to produce records to account for all transactions: the grantee had helped the grantor “in a multitude of ways” and, accordingly, the burden of strict accounting practices was inappropriate.
In Laird v Mulholland  OJ No 855, the Court noted that the overall credibility of an attorney for property is an important factor in determining whether that attorney’s informal accounts are satisfactory. The Court was unable to conclude that the attorney had acted dishonestly with a view to misappropriating the grantor’s assets, notwithstanding that his “record-keeping practices [left] much to be desired.
The Court pointed to the “abundant evidence” that the Attorney had performed “a multitude of services” which were entirely for the benefit of the grantor. The Court held that the fiduciary had acted “honestly and reasonably in all the circumstances” and should therefore be “relieved from personal liability.”
Thanks for reading,
Where an incapable person is named as a party in a legal proceeding, the appointment of a representative is necessary to ensure that the person’s interests are adequately represented in the litigation.
Litigation Guardians in Civil Proceedings
Rule 7.01(1) of the Rules of Civil Procedure states that, unless the Court orders or a statute provides otherwise, a litigation guardian shall commence, continue or defend a proceeding on behalf of a “party under disability.” The Rules define “disability” to include a person who is mentally incapable within the meaning of sections 6 or 45 of the Substitute Decisions Act, 1992.
Rule 7 of the Rules of Civil Procedure provides additional guidance regarding litigation guardians in civil proceedings, including the powers and duties of a litigation guardian.
But what about parties who are under an incapacity and who are named as parties in a family law proceeding in Ontario?
“Special Parties” Under the Family Law Rules
In Ontario, the Family Law Rules apply to family law cases in the Superior Court of Justice’s Family Court, the Superior Court of Justice and the Ontario Court of Justice. The Family Law Rules provide guidance on the appointment of representatives for incapable persons in family law matters.
Rule 2 of the Family Law Rules defines a “special party” as a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding.
Pursuant to Rule 4(2), the Court may authorize a person to represent a special party if the person is appropriate for the task and willing to act as representative. If there is no appropriate person willing to act, the Court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as the representative.
Mancino v Killoran – More Than One Potential Representative
A recent decision illustrates the conflicts that may arise when more than one person believes that they are the most appropriate person to act as an incapable person’s representative in a family law proceeding.
In Mancino v Killoran, 2017 ONSC 4515, the Applicant asserted a claim for spousal support and for an interest in a property against the Respondent (“Michael”). Michael had been diagnosed with Alzheimer’s, and was a resident at a long-term care home. Michael’s sister (“Colleen”) and his son (“Allan”) both sought to represent Michael’s interests in the litigation, and filed affidavits in support of their positions.
Justice Gareau considered Michael’s power of attorneys and testamentary documents, which were executed at a time when Michael was still capable. Allan was named as Michael’s attorney for property and co-attorney for personal care. Allan was also named as the sole Estate Trustee of Michael’s Estate.
Justice Gareau held that “[t]he fact that Michael…, at a time when he had capacity, placed Allan… in a position of trust over his personal property and the administration of his estate indicates that he had confidence in Allan…to represent his best interests.” Michael’s sister Colleen was not named in any of Michael’s testamentary documents, which Justice Gareau found to be a “powerful and persuasive fact.”
The Court concluded that there was nothing in the evidence that would persuade the Court to depart from Michael’s express wishes regarding the management of his property. In the result, Allan was appointed to represent Michael as a special party in the family law litigation.
Thank you for reading,
Umair Abdul Qadir
Today on Hull on Estates, Suzana Popovic-Montag and Umair Abdul Qadir discuss the recent decision of the Honourable Justice McNamara in Shaw v Barber, 2017 ONSC 2155, regarding the tolling of the limitation period for dependant’s relief claims under Part V of the Succession Law Reform Act when the Office of the Public Guardian and Trustee is acting as the statutory guardian for an incapable person.
Today’s blog was inspired by Karen Von Hahn’s article in The Globe and Mail about the memoir that she wrote on the subject of her late mother. What Remains: Object Lessons of Love and Loss appears to be a collection of chapters in which each chapter is focused on a different thing or object that reminded the author of her mother. According to Von Hahn, she used items, like her mother’s silver satin sofas and a pack of cigarettes, “as a starting point, lens and metaphor to talk about who she was”. Perhaps poignantly, Von Hahn wrote that “the first line of the book is that the last word my mother ever said to me was ‘pearls’”.
Given the importance that we may attach to our things (and the importance that our loved ones may correlatively attach to our things), those who are thinking about their estate plans may wish to include specific provisions in their Will with respect to the disposition of personal possessions on death.
In doing so, an attorney for property or a guardian of property will also be prohibited from getting rid of these specific items during the testator’s lifetime, if he/she knows that these items are subject to a specific testamentary gift in accordance with section 35.1 of the Substitute Decisions Act, 1992. That being said, section 35.1 of the Act also allows for the disposition of a specific testamentary gift if it is necessary to comply with the guardian’s duties, or if it is gifted to the person who would be entitled to it under the Will within the purview of an optional expenditure under section 37. Accordingly, specificity is key in this regard and it would appear that care should be given to describing the item with as many details as possible.
As Von Hahn wrote in her article,
“Like it or not, we read every book by its cover, and judge everyone we meet by their shoes. Which is why we live our lives engaged in a deep and meaningful relationship with both our possessions, and also those of whom we love.”
On that note, happy long weekend everyone!
Canada’s model legislation regarding digital assets, the Uniform Access to Digital Assets by Fiduciaries Act (the “Canadian Model Act”), was introduced in August 2016, and borrows heavily from its American predecessor, the Revised Uniform Fiduciary Access to Digital Assets Act (the “American Model Act”).
The Canadian Model Act defines a “digital asset” as “a record that is created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means.” As with the definition appearing within the American Model Act, this definition does not include title to an underlying asset, such as securities as digital assets. Unlike the American Model Act, the Canadian Model Act does not define the terms “information” or “record.”
In the Canadian Model Act, the term “fiduciary” is also defined similarly as in the American Model Act, restricting the application of both pieces of model legislation to four kinds of fiduciary: personal representatives, guardians, attorneys appointed under a Power of Attorney for Property, and trustees appointed to hold a digital asset in trust.
One challenge that both pieces of model legislation attempt to address is the delicate balance between the competing rights to access and privacy. The American Model Act is somewhat longer in this regard, as it addresses provisions of American privacy legislation to which there is no equivalent in Canada. Canadian law does not treat fiduciary access to digital assets as a “disclosure” of personal information. Accordingly, under Canadian law, the impact on privacy legislation by fiduciary access to digital assets is relatively limited.
The Canadian Model Act provides a more robust right of access to fiduciaries. Unlike the American Model Act, the Canadian Model Act does not authorize custodians of digital assets to choose the fiduciary’s level of access to the digital asset. Section 3 of the Canadian Model Act states that a fiduciary’s right of access is subject instead to the terms of the instrument appointing the fiduciary, being the Power of Attorney for Property, Last Will and Testament, or Court Order.
Unlike the American Model Act, the Canadian equivalent has a “last-in-time” priority system. The most recent instruction concerning the fiduciary’s right to access a digital asset takes priority over any earlier instrument. For example, an account holder with a pre-existing Last Will and Testament, who chooses to appoint a Facebook legacy contact is restricting their executor’s right to access their Facebook account after death pursuant to the Will.
Despite their differences, both pieces of model legislation serve the same purpose of facilitating access by attorneys for or guardians of property and estate trustees to digital assets and information held by individuals who are incapable or deceased and represent steps in the right direction in terms of updating estate and incapacity law to reflect the prevalence of digital assets in the modern world.
Thank you for reading,
This week on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the Law Commission of Ontario’s Final Report on legal capacity, decision-making and guardianship in Ontario.
Last week, the Law Commission of Ontario (LCO) released its Final Report on Legal Capacity, Decision-making and Guardianship. The Final Report is the result of work conducted by a LCO Advisory Group since early 2013.
In the Final Report, the LCO outlines the strengths and attributes of Ontario’s capacity and guardianship regime, as well as areas of concern. Some key areas of concern the LCO identifies include:
- The system is confusing and lacks coordination;
- There is a lack of clarity and consistency in the law for capacity assessments;
- Legal tools are not responsive enough for the range of needs of those directly affected;
- Individuals, families, and service providers are not receiving enough support;
- The current oversight and monitoring mechanisms for substitute decision makers are insufficient;
- The dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA) are inaccessible to many.
The Final Report includes recommendations for reforms to law, policy and practice. These recommendations relate to (1) improving access to the law, (2) promoting understanding of the law by those directly affected, (3) strengthening protection of rights under the Health Care Consent Act, (4) reducing inappropriate intervention, (5) increasing accountability and transparency, and (6) enabling greater choice of substitute decision makers.
The Final Report makes 58 recommendations on the statutory regime for legal capacity, decision-making, and guardianship, including proposed reforms to the SDA, the Health Care Consent Act, 1996, and the Mental Health Act. Some of the Final Report’s key recommendations on the law of substitute decision-making include:
- Improved access to capacity assessments under the SDA;
- A standard-form “Statement of Commitment” required to be signed by persons accepting an appointment as an attorney;
- The delivery of “Notices of Attorney Acting” at the first time the attorney acts, delivered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as for any other persons identified in the Power of Attorney;
- The option to name a “monitor”, who would have statutory powers to visit and communicate with the grantor and powers to review accounts and records kept by the attorney;
- Development of time-limited or reviewable guardianship orders;
- Development of limited property guardianships, in parallel with existing limited personal care guardianships;
- Further research and consultation be conducted towards establishing a dedicated licensing and regulatory system for professional substitute decision-makers;
- Further research and consultation be conducted towards allowing community agencies to provide substitute decision-making for day-to-day decisions;
- Clarification of the duty of health practitioners to provide information to substitute decision-makers upon a finding of incapacity; and
- Empowering adjudicators under the SDA to order substitute decision-makers to obtain education on specific aspects of his or her duties.
The Final Report suggests short, medium, and long-term plans for implementing the LCO’s recommendations. You can find a copy of the full report at the LCO website.
Thank you for reading.
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“Disability” is defined in Rule 1.03(1) to mean a person who is (a) a minor, (b) mentally incapable within the meaning of section 6 or section 45 of the Substitute Decisions Act, 1992, whether that person has a guardian or not, or (c) an Absentee within the meaning of the Absentee Act.
The procedure and requirements for the appointment of a Litigation Guardian are different for plaintiffs/applicants and defendants/respondents.
The initial appointment of a Litigation Guardian for a plaintiff or applicant occurs without a court order upon the filing of an affidavit with the court setting out the information outlined in Rule 7.02(2).
Where the party under a disability is a defendant or respondent to a proceeding, Rule 7.03(1) states that a Litigation Guardian must be appointed by motion to the court unless the exceptions set out in Rule 7.03 (2), (2.1) or (3) apply. These exceptions include the prior appointment of a Guardian or a valid Attorney for Property with express powers to act as Litigation Guardian, or where the Office of the Children’s Lawyer is representing a minor’s interest in an estate or trust. Where there is no appointed guardian or attorney under a power of attorney, any person not under a disability may act as a Litigation Guardian. Where there is no person willing to act as Litigation Guardian, the Public Guardian and Trustee may be appointed.
Litigation Guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.
A recent decision of the Ontario Superior Court of Justice, Huang v. Braga, 2016 ONSC 6306, considers the appointment of a litigation guardian for a defendant or respondent in circumstances of mental incapacity.
In that case, the defendant had retained five different counsel over 13 years. She had fired her counsel, rejected a large settlement and insisted on proceeding to trial. A capacity assessment was ordered and she was found to be incapable of acting for herself in the action, but capable of managing her property. On review of the totality of the circumstances, Archibald J. found the defendant to be a party under a disability and issued Judgment appointing the Public Guardian and Trustee to act as litigation guardian.
Archibald J. refers to the decision in C.C. v. Children’s Aids Society of Toronto,  OJ No. 5613, which establishes the following test for whether a Litigation Guardian is required:
- The person must appear to be mentally incapable with respect to an issue in the case; and
- As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.
In addition, Archibald J. states that the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other reason such as lack of sophistication, education or cultural differences.
Archibald J. states that in determining whether a person “appears to be mentally incapable” the following factors should be considered:
(a) The person’s ability to know or understand the minimum choices or decisions required and to make them;
(b) An appreciation of the consequences and effects of his or her choices or decisions;
(c) An appreciation of the nature of the proceedings;
(d) The person’s inability to choose and keep counsel;
(e) The person’s inability to represent him or herself;
(f) The person’s inability to distinguish between relevant and irrelevant issues; and,
(g) The person’s mistaken beliefs regarding the law or court procedures.
Traditionally the Court has accepted the following types of evidence in support of same:
- medical or psychological evidence as to capacity (including, a capacity assessment, report or doctors certificate);
- evidence from persons who know the litigant well;
- appearance and demeanour of the litigant;
- testimony of the litigant; and,
- opinion of the litigant’s own counsel.
Thank you for reading.