Role of Guardian of Property in Ontario
Note: Most of the comments below about guardians of property are equally applicable to attorneys under a power of attorney for property. In Ontario, substitute-decision making is governed by the Substitute Decisions Act.[i]
Substitute-Decision Makers in Ontario
There are many people who are not only incapable[ii] of managing their property[iii] or their personal care[iv] but also incapable of executing either a power of attorney for property or a power of attorney for care. These incapable persons need substitute-decision makers appointed for them, such as friends, family members, or the Office of the Public Guardian and Trustee (OPGT). When appointed by court or the OPGT, these substitute-decision makers are called “guardians of property” and “guardians of the person.” A “guardian of property” is someone appointed by the court or the OPGT to manage the financial affairs of those mentally incapable of doing[v] while a guardian of the person” is appointed to make personal care decisions.[vi]
If you are appointed a guardian of property, you must understand all the relevant information, appreciate the consequences of your decisions, and make decisions in keeping with the principles of the Substitute Decisions Act. You will be a fiduciary with many powers and duties, discussed below.
Guardian of Property Overview
As a guardian of property in Ontario for an incapable person, you are a fiduciary whose powers and duties must be performed diligently, with honesty and integrity and in good faith for the incapable person’s benefit.[vii] In determining whether the decision is for the incapable person’s benefit, you must consider the effect of your decision on that person’s comfort or well-being.[viii] The most important goal would be to maximize his or her quality of life.
You must act in accordance with the management plan established for the property, which accompanied the original application. A management plan is the document outlining the details of the property and your plan submitted to the court with your application for guardianship. If circumstances change, you may amend the plan from time to time with approval.[ix]
Though you are in charge of managing the incapable person’s property, you must nevertheless consult with others. You must accommodate the decisions made about the incapable person’s personal care.[x] That said, you can make a financial decision that trumps a personal care decision only if to do otherwise would result in negative consequences with respect to property that heavily outweighs the personal care benefits.[xi] In addition, you must seek the incapable person’s participation,[xii] along with his or her supportive friends and family members who are in regular personal contact.[xiii]
Powers of the Guardian of Property
Except for making wills and other testamentary dispositions(such as changing the designation of a beneficiary of life insurance or an RRSP),[xiv]you can do on behalf of incapable person anything in relation to his or her property that he or she could do if capable,[xv] such as investing, paying bills, collecting debts, buying goods and services, opening or closing bank accounts, redirecting income or pensions, applying for benefits or supplementary income, dealing with personal belongings, maintaining or selling real estate, and starting or defending lawsuits with financial implications. Even though you control the incapable person’s property, he or she retains ownership and remains liable for his or her own financial obligations, though you would be liable for damages resulting from a breach of your duties. If any difficult questions about the management of the property were to arise, you could apply to the court for directions on how to resolve the issue.[xvi]
Expenditures Made by the Guardian of Property
As the guardian of property, you are required to make certain expenditures for the incapable person[xvii]:
- Those reasonably necessary for the person’s support, education, and care;
- Those reasonably necessary for the support, education, and care of the person’s dependants (only if the property is and will remain sufficient to provide for expenditures under 1);[xviii] and
- Those necessary to satisfy the person’s other legal obligations (only if the property is and will remain sufficient to provide for expenditures under 1 and 2).[xix]
In addition to the above required expenditures, you may make gifts to charities and gifts and loans to the incapable person’s friends and relatives if that person indicated a willingness to make those kinds of expenditures on his or her own.[xx] If the incapable person were to indicate to you that he or she did not want to make gifts or loans, those wishes would have to be followed as long as they do not affect necessary expenditures. With that said, the total value of charitable gifts cannot exceed i. 20 per cent of the income of the property in the year in which the gifts are made, and the maximum value of charitable gifts.[xxi]
Records and Accounts
You must keep the incapable person’s financial accounts and transactions separate from your own. You are not able to borrow or use the incapable person’s money for yourself or for your family unless authorized by either the Court or the management plan. It is important that you maintain your records and accounts in a manner outlined in Ontario Regulation 100/96.
As the guardian of property, one of your main legal duties is to keep accounts of all transactions involving the incapable person’s property. You must pass (submit) these accounts to the court for inspection. Anybody else, with the court’s permission, may apply to the court for an order requiring you to pass your accounts.
You cannot disclose any information contained in the accounts and records unless ordered by court or required to fulfill your duties as a guardian of property. That said, you must produce copies of your records as guardian to the incapable person, OPGT, and the incapable person’s guardian of the person or attorney for personal care.
Compensation for a Guardian of Property
As a guardian of property, you clearly have a lot of duties, so it only makes sense that you receive compensation. You may take annual compensation from the property in accordance with the prescribed fee scale.[xxii] According to that fee scale, you are entitled to compensation of 3% on capital and income received; 3% on capital and income disbursements; and 0.6% of the annual average value of the assets (the “care and management fee”),[xxiii] and this may be taken monthly, quarterly, or annually.[xxiv] If the prescribed fee scale is insufficient, you may receive more with the requisite consents.[xxv]
Please contact us if you have any questions or comments or want to know how to apply to be someone’s guardian, of property.
[i] Substitute Decisions Act,1992, S.O. 1992, c. 30.
[ii] Incapable means “mentally incapable.” See: Substitute Decisions Act, supra note 1, s 1(1).
[iii] A person is incapable of managing property if he or she is unable to understand information relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack thereof. See: Substitute Decisions Act, supra note 1, s 6.
[iv] A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. See: Substitute Decisions Act, supra note 1, s 45.
[v] Substitute Decisions Act, supra note 1, s 22(1).
[vi] Ibid. s 55(1).
[vii] Ibid. s 32(1).
[viii] Ibid. s 32(1.1).
[ix] Ibid. s 32(11).
[x] Ibid. s 32(1.2).
[xi] Ibid. s 32(1.3).
[xii] Ibid. s 32(3).
[xiii] Ibid. s 32(4).
[xiv] See: Succession Law Reform Act, R.S.O. 1990, c. S.26 s 1(1).
[xv] Substitute Decisions Act, supra note 1, s 31(1).
[xvi] Ibid. s 39(1).
[xvii] Ibid. s 37(1).
[xviii] Ibid. s 37(2).
[xix] Ibid. s 37(2).
[xx] Ibid. s 37(3).
[xxi] Ibid. s 37(4).
[xxii] Ibid. s 40(1).
[xxiii] O. Reg. 26/95: GENERAL s 1.
[xxiv] Substitute Decisions Act, supra note 1, s 40(2).
[xxv] Ibid. s 40(3).