Tag: office of the public guardian and trustee
The other day I blogged on The Office of the Public Guardian and Trustee (“OPGT”), and the various roles it fulfills in its protection of incapable Ontarians. One such role is reviewing management plans for property guardianship applications. Dermot Moore, Litigation and Senior Client Counsel at the OPGT, has instrumentally addressed this subject area in his paper entitled “The Annotated Guardianship Application – The View From the Office of the Public Guardian and Trustee”. Some take aways I found helpful to keep in mind include:
- Bonds – Right off the bat, consider the issue of whether a bond is possible for the proposed guardian to get in the event that a court requires it. Further, if a surety company is needed to obtain the bond, consider that the surety company may deny a bond to a guardian with a poor credit history. Additionally, some companies will require several years of fees in advance and/or place time limits on the duration of the bond. Finally, if you are asking the court to dispense with the bond requirement, if there are no other issues with the proposed management plan, you can expect that the OPGT will not oppose the request.
- No no’s – Though these may seem obvious, given their increasing prevalence as noted by Mr. Moore, some no no’s in guardianship applications are worth mentioning. 1. Do not omit the management plan from the court material – it is essential to the application. 2. Do not lump assets together. Follow the management plan form, which allows for each asset to be addressed separately. 3. Do not leave sections blank. If there are no assets for a particular heading, indicate as much. 4. Do not leave the management plan unsigned.
- Real property – When addressing real property in a management plan, ensure that title to the property is not changed to be held jointly with others or in trust. The property should be held solely in the incapable person’s name. If the property is going to be sold, the plan ought to set out that the guardian will obtain at least one (or two, ideally) estimates of value. The investment plan for the proceeds of sale should also be addressed.
- The benefit must be for the incapable person – Of course, the incapable person’s assets are to be used for their benefit alone. So plans that propose dividing the assets during the incapable person’s lifetime will be scrutinized. While gifts and loans are permitted if the person made such gifts and loans prior to incapacity and if they can afford to continue to do so, such items will surely be questioned and possibly opposed by the OPGT depending on the circumstances of each case.
Thanks for reading and have a great day,
As the holiday season comes to a close, many of us will take stock of the time enjoyed with friends, family, and loved ones, and look forward to the prospect of a new year. Unfortunately, as members of the estates bar, we are occasionally called on to review circumstances in which no family members or loved ones are around for the purposes of a deceased individual’s estate planning decisions. More specifically, we are often asked to consider the proper legal procedures when an individual passes away having named an estate trustee who is incapable of acting, and where the individual died leaving no spouse, children, or next-of-kin in Ontario.
In the foregoing circumstances, Ontario’s Crown Administration of Estates Act gives the Office of the Public Guardian and Trustee (the “PGT”) the appropriate authority to step in to the shoes of an estate trustee and administer the estate, if necessary and subject to certain statutory guidelines. Section 1 of the Act allows the Superior Court of Justice to issue to the PGT “letters of administration or letters probate”, thereby giving it the authority to administer an estate, provided the following conditions are satisfied:
- The deceased person died in Ontario, or was a resident of Ontario but died elsewhere;
- The person died intestate (that is, without a validly executed will), or died leaving a will that does not name an executor or estate trustee who is willing and able to administer the estate; and
- The Deceased had no known next-of-kin of the age of majority residing in Ontario who are willing to administer the estate.
Certain additional policy considerations not listed in the Act have also been adopted to govern whether the PGT will agree to administer an estate. Notably, the PGT will generally only act as an estate trustee of last resort. Before agreeing to act, the PGT will typically take steps to locate another interested party who may wish to be appointed, for example, any of the deceased person’s next-of-kin from out of province. Moreover, the PGT will only step in to administer estates that will hold a value of at least $10,000 after all debts of the estate have been paid. By its own estimates, at any given time the PGT is actively administering more than 1,400 estates. Accordingly, these additional policy considerations ensure that the appropriate resources can be directed to the estates that the office has agreed to administer.
Thanks for reading. Happy New Year!