June 22, 2020

When the issue of compensation is not specifically addressed in the Power of Attorney for Personal Care, a guardian for personal care may be wondering whether they are entitled to compensation.

Legislation, however, does not provide a clear answer. While under the Substitute Decisions Act an attorney for property is expressly allowed to take compensation, no such clarity is provided in relation to attorneys for personal care. Section 61 of the Trustee Act states, generally, that a personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice.

Case law holds that an attorney for personal care is allowed to claim compensation where the Power of Attorney is silent on the issue, but such compensation must be reasonable. In Brown, Re (1999 Ont. S.C.J., O.J. No. 5851), where the attorney was a trust company, the court found that compensation could be awarded provided there is sufficient evidence about the nature and extent of the services provided, and evidence from which a reasonable amount can be fixed for compensation. Unsurprisingly, following Brown, courts appear more inclined to award compensation to attorneys for personal care who keep detailed records of the tasks performed.

Where a family member of the incapable person is appointed, a court may allow them compensation for their management of the individual’s personal care, rather than compensation for any care services they provided. In Childs v Childs, 2015 ONSC 4036 the court awarded $500/month to a daughter who was appointed as her mother’s guardian for personal care. The court found that a child should not be paid to care for an ailing mother, but awarded compensation to the guardian for managing her mother’s access to care services. In so doing, the court considered the mother’s financial circumstances, and any sacrifices made by the daughter to undertake caring for her mother.