When an elderly parent loses the ability to make financial or care decisions on his own, families often rally together. The adult children may find they are able to execute financial and care decisions for their parent on an informal basis, and this informal management will continue until a bank or medical facility refuses to take any instructions from the family until someone is formally authorized to act as the parent’s substitute decision maker.
If the parent signed a power of attorney document before he lost capacity, the transition can be smooth: the named attorney for property/care is the authorized substitute decision maker and can give instructions to the banks/care givers. However, if there is no power of attorney document, the family members must decide: can they agree on who should handle decisions about the parent’s finances (or care)? If they do agree, what are the next steps?
Set out below is an overview of a “typical” application to be appointed as guardian of property brought by an adult son for his incapable mother. Keep in mind, however, that every situation is unique, meaning every guardianship application will move forward in a slightly different way.
Step 1 – Identify the Parties to the Guardianship Application
Since the son is seeking the appointment as his mother’s guardian of property, he will be the “applicant” in the court proceeding.[1]
The “respondents” are the mother and the Public Guardian and Trustee (the “PGT”).[2]
Although they do not need to be named as parties to the guardianship application, copies of the son’s guardianship application must be sent to the mother’s immediate family members: the mother’s spouse, adult children, parents, and siblings.[3]
Step 2 – Notice of Application
The notice of application starts the court proceeding. It names the date and location where the guardianship application will be heard. It lists the relief that the son is seeking (in this case, an order appointing him as his mother’s guardian of property). It also sets out the reasons why he is applying to the court for assistance (in this case, because his mother is incapable of managing her own finances and did not appoint anyone as her attorney for property while she was capable of doing so).
Step 3 – Create a Management Plan
A guardian must manage the incapable person’s affairs according to any terms set out in a management plan.[4] As part of the guardianship application, the son will prepare a management plan outlining his mother’s assets, income, expenses, and debts. The management plan explains how the son intends to deal with any shortfall between the mother’s income and expenses, and any likely changes to his mother’s finances in the near future.
As part of the guardianship application, the PGT will review the management plan and may provide comments or ask questions (either informally through discussions with the son and his lawyer, or formally as through a responding application record which is filed with the court). The son may revise and update the management plan to take into account the PGT’s feedback as necessary.
If the son does not have all the information about his mother’s finances (for example, if the banks refuse to provide him with his mother’s account information until he is appointed as guardian of property), the son may create an “interim” management plan, with the promise that he will create an updated management plan once he has been appointed as guardian and gains access to his mother’s full financial information.
Step 4 – Supporting Documents
In order to complete the application record, the son must provide a statement (often in the form of an affidavit) confirming his consent to step into the role of guardian. The statement must also confirm that he informed his mother of the guardianship application and her right to oppose, or set out an explanation of why it was not possible to inform his mother of the application.[5]
In order to ensure that the hearing goes smoothly, it is helpful for the son’s affidavit to set out the background to the application, including the family members’ agreement with the son’s appointment as guardian and the reasons for the family’s belief that their mother is incapable of managing her finances (any documentary evidence, such as a note from a doctor or formal capacity assessment, can be attached to the affidavit as an exhibit). The affidavit may also provide more details about the mother’s finances and include bank statements, a needs assessment, or investment proposal as exhibits.
The son’s lawyer may also prepare a factum in support of the guardianship application. A “factum” is a summary of the relevant facts and the law. The factum is a roadmap of the son’s arguments in support of his appointment as guardian of property, and is often the first document read by a judge.
Step 5 – The Court Hearing
The day of the hearing, the son’s lawyer will appear before a judge to ask that the son is appointed as his mother’s guardian of property. The son may (and is encouraged to) observe the hearing, but does not need to participate: he has already submitted his evidence in his affidavit.
The PGT may or may not attend the hearing, depending on whether he has concerns with the son as guardian or proposed management plan (if none, the PGT may advise the court of his position prior to the hearing).
The judge will carefully review the management plan and affidavit, not only to make sure that the son has met all the technical requirements of the guardianship application (for example, that all proper persons have been put on notice), but also to make sure that the proposed guardianship plan is in the mother’s best interests.
Just because the guardianship application is on consent does not guarantee success: at the end of the hearing, the judge may send the son back to make changes to the management plan or to obtain more information, or reject the management plan and the son’s appointment altogether. However, where the court is satisfied that the son is the appropriate person to act as his mother’s guardian, and the management plan sets out a strategy that appropriately addresses his mother’s needs for the foreseeable future, the judge may approve the management plan and appoint the son as guardian.
[1] It is possible for someone other than the proposed guardian to start the application, but this is less common.
[2] See s. 69(1) of the Substitute Decisions Act, 1992, SO 192, c 30 (the “SDA”).
