If more than one person wants to be the guardian, the content of the Guardianship Plans will determine who is best suited for the job. The case of Nguyen-Crawford v. Nguyen  OJ No. 5424, 2011 ONSC 7190 states the areas that a Guardianship Plan should cover:
– the prior and present wishes of the incapable person regarding their long-term care and placement;
– the ability of family members and the incapable person to afford care at home;
– the willingness of family members to access community programs for the incapable person;
– the proposed dietary regime and personal dietary preferences of the incapable person;
– detailed residential plans and changes to those plans if the incapable person’s health is declining;
– a rationale for any proposal to move the incapable person from their community; and
– detailed plans regarding access for family members and friends.
In the latest development in the protracted litigation between the heiress to a cosmetics fortune and her daughter, a French Court this week granted guardianship applications brought by her daughter and grandchildren. The Court made findings that the mother was not capable of managing her own property or making personal care decisions.
In Ontario, guardianship disputes are governed by the Substitute Decisions Act (“SDA”). Under section 3 of the SDA, when the capacity of a person is in dispute, counsel may be ordered to be appointed by the Public Guardian and Trustee and the alleged incapable person will be deemed to have capacity to instruct counsel.
To read more about the history of the proceeding referred to at the outset of this blog, I suggest Forbes magazine’s article.
Thanks for reading,
In the matter of Estate of Divina Damm, 2010 ONSC 5119 (CanLII), Justice Brown reflected on the form of accounts to be used upon the filing of an application by a guardian for property to pass accounts.
Justice Brown noted that in passing accounts of a guardian, s. 42(6) of the Substitute Decisions Act, 1992 provides that "the procedure in the passing accounts is the same … as in the passing of executors’ and administrators’ accounts".
Rule 74.17(1) of the Rules of Civil Procedure specifies in detail the form of accounts to be filed. The Rule requires:
(a) an itemized accounting of assets under administration, cross-referenced to entries showing the disposition or partial disposition of the assets;
(b) an account of all money received;
(c) an account of all money disbursed;
(d) where investments are made, an account setting out all money paid to purchase investments, and money received by way of repayment or realization of assets in whole or in part;
(e) a statement of all unrealized original assets at the end of the accounting period;
(f) a statement of all money and investments at the end of the accounting period;
(g) a statement of all contingent or other liabilities at the end of the accounting period;
(h) a statement of compensation claimed; and
(i) such other statements and information as the court requires.
If the will or the trust deals separately with income and capital, the accounts are to show separately the receipts and disbursements of capital and income.
In the matter before Justice Brown, the accounts were said to lack the detail required by the Rules, and provided information at the "30,000 foot" level. Justice Brown felt that he could not hear the matter without greater particularization of the accounts. The accounts did not comply with the Rules; due to this lack of particularity, a question arose as to whether a respondent served with the accounts could properly understand the conduct of the guardian; and the Court could not link the particulars of the judgment (which sets out specific amounts for revenue receipts and disbursements and capital receipts and disbursements) to the evidence.
While he rejected the application, Justice Brown raised the question of whether the Rules should be amended so as to allow for a simpler form of accounts for smaller estates. However, until a rule change, all accounts must comply with the format set out in Rule 74.17(1).
Thanks for reading,
Who says estates law isn’t glamorous? A French judge in Nanterre, on the outskirts of Paris, has recently rejected the second attempt by Francoise Bettencourt-Meyers to obtain guardianship over her mother, Liliane Bettencourt. 87-year-old Bettencourt is the sole heir of L’Oreal, the world’s largest cosmetics and beauty company that her father founded in 1909. She is the richest woman in the world, with her current fortune estimated at 17 billion euros.
Bettencourt-Meyers failed to produce a medical certificate and “in the absence of this document, nothing more can be done”, the Paris official said.
According to Aol News, Bettencourt-Meyers wishes to protect her mother from a celebrity photographer who befriended Bettencourt and to whom the heiress has given gifts totaling a billion dollars. France24 reports that Bettencourt accuses her daughter of "vile doggedness" and impatience to get her hands on her fortune.
Whether a guardianship application is motivated by the desire for power and money or genuine love and concern, a court will not interfere with an individual’s autonomy lightly. For information on when a court will order a capacity assessment, see my previous blog on this topic here.
Sharon Davis – Click here for more information on Sharon Davis.
Trustees often run into difficulties when they pay themselves compensation prior to passing their accounts. They are said to have "pre-taken" compensation, meaning having paid themselves compensation prior to passing their accounts. Fortunately for guardians of property (and attorneys), section 40 of Ontario’s Substitute Decisions Act allows guardians to pay themselves compensation at intervals during the guardianship before passing their accounts:
(2) The compensation may be taken monthly, quarterly or annually.
Amounts taken monthly or quarterly could be divisions of a calculated "annual" amount, but this provision contains no element requiring equal divisions. Regardless of how the property guardian takes compensation, any payment is subject to court approval. Clients applying for guardianship should always be advised specifically of this point: if the court later disagrees with the compensation taken, the guardian may have to repay such amounts. This holds true even where the Management Plan pursuant to which the guardian is managing the incapable person’s property authorizes the compensation the guardian has taken.
This raises another important consideration for lawyers in the application for guardianship stage. Any compensation taken, or claimed later on a passing of accounts, should not be inconsistent with the provisions of the Management Plan. Because the right to compensation is statutory, as are the prescribed percentages (though subject to discretionary reduction by the court), there is no need to declare an intention to take compensation in the Management Plan. But if the Management Plan contains a provision disclaiming compensation, for instance, no compensation should be taken during the guardianship.
Have a great day,
Christopher M.B. Graham – Click here for more information on Chris Graham.
Although one of the perils of running an estate blog over the past month has been (with apologies to CNN) the risk of over-reporting on the estate of Michael Jackson, the media frenzy has nonetheless served to shine a light on certain aspects of estate planning that otherwise go unnoticed.
A clause appointing a guardian for one’s child(ren) is not always one that younger testators choose to put in their wills. This may in part be due to the statistical unlikelihood of both parents dying before a child reaches the age of eighteen. In such a tragic eventuality, and as Natalia Angelini noted in her recent blog on the subject, the ultimate decision on guardianship is in the court’s discretion.
A recent article posted online by the Canadian Press comments on the difficulty that couples may encounter in trying to agree on a guardian for their child(ren). Some will want a friend; others will insist on a family member. Complicating any decision may be such considerations as the likelihood of the proposed guardian relocating to a foreign jurisdiction or remarrying someone who, in hindsight, may not prove to be a good parent to the children.
It is always a good idea to plan for any statistical anomaly. The Courts will typically respect the choice of the testator and assign great weight to his or her wishes. The alternative of leaving the decision completely unfettered by such wishes is not one that any parent of a young child would want to contemplate.
David M. Smith
The sudden death of Michael Jackson has sent a shock-wave of sadness across the globe. I expect it will be some time before you can tune in to various media without seeing coverage on it.
I find myself drawn in to the discussion, which one of my colleagues also blogged on last week. His commentary focused on the expected complex administration of Jackson’s estate, given both his sizeable assets and debts. This blog focuses on one aspect of the human element of the tragedy, sparked by Jackson’s Will.
As noted in a recent New York Times Article, in his Will Diana Ross is appointed as the guardian for Jackson’s children if his mother is no longer willing or able to fulfill that role.
In Ontario, a custody or guardianship appointment by Will is not determinative of the issue. It only has a temporary effect, in that any appointment for custody or guardianship expires ninety-days after such appointment becomes effective (i.e. ninety-days from the date of death in this case) (see section 61(7) of the Children’s Law Reform Act).
However, if the appointee applies to the court for custody or guardianship within the ninety-day period, the appointment expires when the application is disposed of. While each case is usually fact-specific, I would expect that a testator’s wishes set out in his/her Will is a factor a court would give significant weight to when considering such an application.
In Jackson’s case this issue is already a live one, with potentially several people vying for custody and/or guardianship. It will be interesting to see who ends up being the primary caregiver(s) of his young children.
Have a great day,
With the remarkably cold January (and now February) we have experienced, it is sadly inevitable that there may be seniors who fall victim to the elements. However, a recent web posting regarding a 93 year-old WWII vet who died of hypothermia in his own home after the power was cut off is simply tragic. The tragedy was compounded by the fact that there was no reason for him to be in arrears on his utility payments: he left an estate of over $500,000.
Clearly this story raises at least two issues: (i) whether the cutting off of power in the deep of winter can ever be an appropriate remedy for non-payment of bills and (ii) whether this gentleman was in need of assistance from a substitute decision- maker.
Stories such as these should be rare and, thankfully (hopefully?), are. However, there are many vulnerable seniors who are at risk in the winter months. For those who are in need, incapable to manage their property or care for their person, and who do not have a Continuing Power of Attorney for Personal Care (and Property), there is doubtless a positive moral obligation for concerned family members to seek guardianship. Such a step is likely to be perceived as threatening by such a person in need of assistance. However, in circumstances where lives may be at risk, there may simply be no other option.
David M. Smith
Listen to Guardianship in Canada
This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today’s laws (post-1994) are clearer than they were in the past.
If you have any comments, send us an email at firstname.lastname@example.org or leave a comment on our blog.
This week on Hull on Estates, David Smith and Natalia Angelini talk about the duties an estate trustee he or she is charged with from the moment of a testator’s passing. Duties include locating the will, making funeral arrangements and being responsible to see the intentions of the testator preserved.
Feel free to send us an email at email@example.com or leave us a comment on the Hull on Estates blog.