Tag: Substitute Decisions Act

06 Oct

Compensation & Personal Care Guardians

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Welcome to my week of blogs.

The Substitute Decisions Act is silent when it comes to the issue of compensation for personal care guardians. Section 40 of the SDA addresses compensation for property guardians, but there is no corresponding provision for personal care guardians (though regard can be had to section 68(4) of the SDA). 


I was recently before Brown, J. in Toronto Estates Court in respect of a request for compensation by a personal care guardian (the decision is not yet reported). The property guardian, who I represented, supported the request for compensation, but the PGT questioned the amount requested and wondered whatever happened to “natural love and affection”.


In coming to his decision, Brown, J. applied the analysis set out in Cheney v. Bryrne, which he found was applicable to claims for compensation by personal care guardians. Brown, J. also applied, by analogy, the approach applied by the court to claims for compensation by property guardians. The test regarding the reasonableness of compensation claims was set out in Re: Brown (1999), 31 E.T.R. (2d) 164 (link not available). 


According to Brown, J., the evidence before him clearly demonstrated that the incapable needed the services provided by the personal care guardian. He was also satisfied that the personal care guardian was providing the services to the incapable with care and devotion and that her services were of a high quality and went well beyond what was ordinarily expected. Moreover, the incapable obviously could afford to pay for the services (not an insignificant factor). In considering the level of compensation, Brown, J. was satisfied that the amount claimed was reasonable and in the best interests of the incapable. He therefore approved the compensation claimed.


Thanks for reading. 



08 Aug

The Power of the Public Guardian and Trustee

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Last night, I overheard a distressed woman confiding to a friend about a relative who was declared incapable of managing her property. The Public Guardian and Trustee (“PGT”) had stepped into her shoes to take control and to care for her property. This case peaked my curiosity, so I went home and did some research on this topic. 

Pursuant to Section 15 of the Substitute Decision Act (“SDA”), the PGT can be declared a person’s statutory guardian of property where a certificate is issued under the Mental Health Act (“MHA”) certifying that a person who is a patient of a psychiatric facility is incapable of managing property. Whenever a patient is admitted to a “psychiatric facility”, as defined by the MHA, a physician examines the patient to determine if he or she is capable of managing property. If the physician determines that the patient is not capable of managing property, then he or she must issue a certificate of incapacity. The certificate is subsequently sent to the PGT. As a result, Section 15 is triggered and the PGT steps in as the statutory guardian without any procedural requirement.

Pursuant to Section 16 of the SDA, the PGT can be declared a persons statutory guardian of property where a person requests an assessor to perform an assessment of either their capacity or another person’s capacity. This assessment is done with the view of determining whether the PGT should become the statutory guardian’s of the property. If a person wishes to request that an assessor perform an assessment of another person’s capacity, the person requesting the assessment must: (i) have reason to believe that the other person may be incapable of managing property, (ii) have made reasonable enquiries and have no knowledge of the existence of any attorney under a continuing power of attorney, and (iii) have made reasonable enquiries and have no knowledge of any spouse, partner or relative of the other person who intends to make an application for the appointment of a guardianship of property.

Thank you for reading and I hope my blogs added extra flavour to your favourite morning beverage. 

Rick Bickhram

15 Nov

Frustrated and Marginalized

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In our rapidly aging society, powers of attorney for personal care and property are now widespread and their importance is recognized by the general public. A family member or friend can also apply to the court to be appointed guardian of the person or the person’s property if powers of attorney have not been executed. However, family members often find themselves in a situation where a loved one is being legally cared for by a family member, or friend of the incapable person, who they no longer like or trust. 

A common complaint that I hear is from family members or friends who feel excluded from participating in or influencing decisions regarding the incapable person, particularly when it comes to personal care.  

However, under the Substitute Decisions Act, 1992, which generally governs the rights of an incapable person, any person, with leave, can seek directions from the court on any question arising under a power of attorney (the same is true regarding a court appointed guardian). Pursuant to sections 39 and 68 of the Act, the court may give such directions as it considers to be for the benefit of the incapable person and consistent with the Act.

Section 66(1) of the Act sets out the duties of an attorney for personal care (section 32 is the corresponding section for an attorney for property). In general, the attorney is required to exercise his or her duties and powers with diligence and in good faith. 

Section 66(6) also states that an attorney must foster regular personal contact between the incapable person and supportive family members and friends. Moreover, section 66(7) states that the attorney shall consult with supportive family members and friends who are in regular contact with the incapable person, as well as the incapable person’s caregivers. 

The requirements of section 66, coupled with the ability to seek directions from the court, offer family members and friends the means to ensure that they remain involved with their loved ones and are not simply sidelined. Proceeding to court is always expensive. However, where there is genuine concern and frustration that the incapable person is not being properly cared for and/or his or her finances are being squandered, recourse can be had to the courts.



08 Jun

Interim Payment from the Estate to cover Plaintiffs’ Legal Costs of Litigation

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In Zhao v. Ismail Estate [2006], O.J. No. 5221, the Court considered a motion before it brought by the plaintiffs in the action seeking, amongst other things, (i) certain directions and disclosure of information prior to a scheduled mediation, (ii) an Order for interim support under s.64 of the Succession Law Reform Act (“SLRA”), (iii) the removal of the defendant as Estate Trustee of the subject Estate, and (iv) an Order granting the interim payment of legal costs from the Estate to the plaintiffs.

Pursuant to an Order of the Court dated December 15, 2005, the proceeding had been converted from an Application to an ordinary action in light of the contested issues of fact and credibility involved. The plaintiffs are the mother (91 years old) and brother (55 years old) of the testator, both of whom reside in China. The testator died on June 4, 2004 and left her entire Estate valued in the range of $1.7 million to her solicitor and friend, the defendant, who at the time of the motion was the Estate Trustee of the testator’s Estate.

The Statement of Claim in this proceeding, dated February 6, 2006, claims, inter alia, that the testator’s Will dated January 28, 1992 and Codicils dated April 30, 2004 and May 14, 2004 are invalid as the testator lacked testamentary capacity and/or was subject to undue influence or that she lacked knowledge and approval of the contents. In addition, amongst other relief, the plaintiffs claim, in the alternative, that the testator failed to make adequate financial provision for them, as dependants, under Part V of the SLRA.

The Court disagreed with the defendant’s submission that the Court was not authorized to appoint an Estate Trustee in place of the Estate Trustee already appointed. The Court held that the defendant, as sole beneficiary under the Will, was in a clear conflict of interest in carrying on as Estate Trustee and that pursuant to Rule 75.04 of the Rules of Civil Procedure and s.5 of the Trustee Act, the Court had such power.



01 May

What Happened to My Gift? A Look at the Principle of Ademption.

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What happens when the gift you were promised under a Will is disposed of before the testator’s death? The answer is that it depends on how the gift was disposed.

According to the principle of “ademption,” where there is a bequest of a specific item under a Will and that item no longer exists at the testator’s death or is no longer part of his estate at the time of his death, the gift is forfeited or “adeems.” Quite simply, you don’t get the gift.

However, a beneficiary who is disappointed to learn that a promised gift no longer exists must consider how the gift was disposed. More specifically, who disposed of the gift and for what reason.

Under Ontario law, if the gift was disposed of by a guardian of property or an attorney acting under a power of attorney, as the beneficiary of that gift, you are not necessarily out of luck. Section 36 of the Substitute Decisions Act (the “Act”) provides that a beneficiary of an adeemed gift is entitled to the equivalent value of the proceeds from the disposition of the gift out of the residue of the deceased’s estate. This is known as an anti-ademption clause.

The Act sets out corresponding duties on guardians and attorneys for property to determine whether the incapable person under their care has a Will and if so, to determine the provisions of the Will.

As with most rules, there are exceptions to the anti-ademption clause, including the following:

  • If the guardian or attorney had to dispose of the property to comply with her duties;
  • If the testator, while alive, gave the gift to the beneficiary (an ademption by satisfaction);
  • and If there is no contrary intention expressed in the Will. For instance, a clause which states that a beneficiary is not to receive any payment out of the residue in the event the gift is no longer in the testator’s estate at the time of death.

For a judicial consideration of the ademption rules, the Ontario Court of Appeal’s decision in McDougald Estate v. Gooderham [2005 CanLII 21091 (ON C.A.)] is worth reviewing. The decision offers an evaluation of the anti-ademption clause in the context of a sale of an incapable person’s property by her attorneys for property.

Thanks for reading.

Jason Allan

09 Mar

Estate Litigation and the Appellate Jurisdiction of the Divisional Court

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In Ontario, the Divisional Court (by amending legislation) now has jurisdiction to hear an appeal made from a final judgment of the Ontario Superior Court of Justice for an amount of not more than $50,000 (previously $25,000), exclusive of costs. Any award over that amount is appealed to the Court of Appeal. Seems clear enough.

However, the jurisdictional issue is muddied by the provisions of the Estates Act, section 10 of which provides that, for any party taking part in a proceeding under that Act, an appeal lies to the Divisional Court. But what if the value of the amount in dispute exceeds $50,000?

Does this cause the Divisional Court to lose jurisdiction? The answer would appear to be “no.” The Court of Appeal, in Re Sinicropi Estate [2000] O.J. No. 838, by agreement of the parties, transferred an appeal from an order on a passing of accounts application to the Divisional Court in which the amount in dispute was over $60,000.00 (as disclosed in the Divisional Court decision: see [2000] O.J. No. 4493).

However, a nice question arises when an appeal is made from a judgment on a contested passing of accounts of an attorney under power of attorney for property. Is the appeal properly made to the Divisional Court? The Estates Act (s. 49(1)) specifically contemplates the passing of accounts by a “guardian.”

It is arguable that, as is the case under s.38 of the Substitute Decisions Act, (“SDA”) this reference to guardian (assuming it means “court appointed guardian”) should be read to include an attorney for property. Of course the references in the SDA significantly postdate the Estates Act, inevitably giving rise to some question as to what was the intention of the legislature when the statute was proclaimed (or whether such a procedural nicety was even considered).

Have a great weekend,



14 Feb

The Requirement for Service in the Substitute Decisions Act

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The recent decision of Boyd v. Thomson, [2006] O.J. No. 4796 (Ont. SCJ) examined section 69(6) of the Substitute Decisions Act, 1992 , which requires that someone bringing a court application to be appointed guardian serve certain family members of the incapable person.

The case involved a guardianship application under s. 22 of the SDA by a man whose wife had suffered brain damage in a car accident.

Although he had consulted with his wife’s parents and siblings and they consented to the application, the applicant did not want them to serve the application materials because it would result in the disclosure of financial and other personal information and he and his wife and had always been very private people. The woman’s parents and siblings were fine with not reviewing or being served with the application record, and had filed consents to the application stating as much. They had also been provided with a notice of the hearing and chose not to attend.

The Public Guardian and Trustee took the position that s. 69(6) of the Substitute Decisions Act made service on certain family members mandatory. Section 69(6) provides that the notice and accompanying documents shall be served on, amongst others, the allegedly incapable person’s parents and any siblings who have reached age of majority.

The court considered whether the word “shall”, as it appeared in the section, should be interpreted as being mandatory or permissive and, in any event, whether the recipient of the documents can waive service.

Here, the court found that the right to service in order to give adequate notice to the family members belongs to the family members, not to the incapable person. Since it is the right of the family members, then it is open to them to waive their right to service. Any consent to a waiver of this type should be given effect by the court.

Have a great day!

Megan Connolly


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