This week on Hull on Estates, David Morgan Smith and Lisa Haseley discuss public policy and the recent Ontario Superior Court decision of Royal Trust Corporation of Canada v. The University of Western Ontario et al. http://bit.ly/1R83FTR
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Sometimes confusion arises as to the distinction between commissioners for taking affidavits, and notaries public.
In Ontario, affidavits for use in court must be commissioned by a person authorized to administer oaths or affirmations. The Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17 stipulates how a person becomes authorized as a commissioner for taking affidavits. Any lawyer in Ontario is, by virtue of that office, a commissioner for taking affidavits in Ontario. There are other specific groups (such as judges or MPs) who are commissioners ex officio. Others can be appointed by the Lieutenant Governor as commissioners. Such appointments are limited in duration, and may be limited as to territory or purpose.
In other circumstances, documents or signatures often need to be notarized by a notary public. In our practice, banks and other institutions usually require an original of a document such as a power of attorney, will or Certificate of Appointment, or a notarial copy of it, before they will act on it.
Unlike commissioners for taking affidavits, lawyers are not automatically notaries public. Notaries are appointed pursuant to the Notaries Act, R.S.O. 1990, c.N.6. Notaries are also authorized as commissioners for taking affidavits in Ontario. To become a notary, an application must be made and the appropriate fees paid. The current fee for a lifetime appointment for a lawyer is $145. Lawyers do not need to take an examination to become a notary: anyone other than a lawyer must complete an examination. Applications may be requested from the Ministry of Government and Consumer Services, Official Documents Services, 9th Floor, 77 Grenville Street, Toronto, Ontario, M5S 1B3. The telephone number is 416-325-8416.
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In a recent news item out of Queensland, Australia, a 77-year-old man has failed in his attempt to regain control of his financial affairs. The elderly gentleman had apparently squandered part of his money on hundreds of calls to sex-chat lines. The Guardianship and Administration Tribunal of Queensland had made an order last year giving control of the elderly gentleman’s financial affairs to the Public Trustee. In November 2008, the Tribunal upheld its original order, leading the elderly gentleman to appeal the matter to the Supreme Court. Last week, the Supreme Court denied the appeal and agreed that the Tribunal retain control over the man’s financial affairs.
Details of the hearing cannot be released due to a publication ban. One wonders whether the sex-chat calls were isolated incidents or part of a pattern of unusual behaviour that convinced the Tribunal (and the Supreme Court) that the elderly gentleman’s capacity to manage his own finances was impaired. It is also unclear whether the man had family and/or whether any of his family supported his fight to regain control of his money.
I note that the Guardianship and Administration Tribunal of Queensland has similar duties and responsibilities to Ontario’s Office of the Public Guardian and Trustee of Ontario (OPGT) and the Consent and Capacity Board. The Tribunal of Queensland can determine whether or not a person has impaired decision-making capacity and, if necessary, make an order appointing a guardian and/or an administrator. In Ontario, it is the courts that primarily make determinations of incapacity.
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Bianca La Neve
This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p.175.