We have previously written about Litigation Guardians. This week, we explore the related but distinct issue of Guardian(s) of Property following successful litigation in Ontario.
A Guardian of Property is a court-appointed person who essentially steps into the shoes of a person that is considered legally incapable (such as a minor or incapable person) to make financial decisions and carry out financial transactions on that person’s behalf. The Guardian, or Guardians, may pay bills, invest money and make purchases, among other things.
In the context of medical malpractice litigation, a Guardian of Property may be necessary to manage or use a large award or settlement on behalf of a minor or incapable person. Otherwise, the person’s funds would be paid into Court to be managed by the Accountant of the Superior Court of Justice.
Who Can be a Guardian of Property?
An adult is considered “incapable” if they cannot understand information relevant to make financial decisions or cannot appreciate what may happen as a result of their decisions. This can include, for instance, individuals who have suffered a brain injury. On the other hand, by law, anyone under the age of 18 is considered to be incapable of managing large awards or settlements.
A Guardian of Property does not have to be a specific individual, but is usually the parent or other close family member of the incapable individual. More than one individual can be a Guardian for Property, in which case they will function as joint Guardians.
The Office of the Public Guardian and Trustee or Office of the Children’s Lawyer can also serve as a Guardian of Property, often in cases where no appropriate family member or close friend is available. In some circumstances, the court may require a trust company or other independent professional to act as a Guardian (a “Corporate Guardian”). If no Guardian is appointed, the funds may be paid into Court to be managed by the Accountant of the Superior Court of Justice.
Applying to be a Guardian of Property
A person can become a Guardian of Property by applying to court. The Application should include a sworn affidavit that outlines the evidence of the incapable individual’s incapacity, the need for a Guardian, who the Guardian or Guardians should be, and a Management Plan with the proposed plans of how the Guardian or Guardians intend to manage and use the funds. The Application should also include a formal draft Order setting out the terms of the guardianship being sought. In the case of a disabled adult, a Capacity Assessment will likely be required.
The guardianship application must be served on the incapable person, all of their immediate family members, the Public Guardian and Trustee (if the incapable person is an adult), or the Office of the Children’s Lawyer (if the incapable person is a minor). The Public Guardian and Trustee or the Office of the Children’s Lawyer represents the incapable person– and not the prospective guardian- during the Application process. The Public Guardian and Trustee or the Office of the Children’s Lawyer might oppose the application and may argue against it in Court before a Judge.
If the Judge agrees that the Guardianship is in the best interests of the minor or incapable person, the Judge will grant a Guardianship Order (in accordance with a Management Plan).
What Does This Mean in Medical Malpractice?
In a medical malpractice case, the parents or guardians of an injured child generally apply to become that child’s Guardian of Property. This is usually done after a settlement or trial award is received in order to begin using the settlement funds or trial award on behalf of the child.
Obligations of a Guardian of Property
First and foremost, a Guardian of Property must follow the Guardianship Order and Management Plan. More generally, the powers and obligations of a Guardian of Property for a minor are outlined in the Ontario Children’s Law Reform Act, 1990 and the Substitute Decisions Act, 1992 and its related regulations for an adult.
The responsibilities of a Guardian of Property are significant. Guardians of Property are responsible for the financial welfare of the incapable person, and are permitted to do anything in relation to an incapable person’s property and assets that the person could do if they were capable, subject to certain restrictions and in accordance with the terms of the Guardianship Order.
With respect to monies obtained in a settlement in a medical malpractice case, this could include:
- Purchasing therapies, services, and equipment;
- Opening a bank account on behalf of the incapable person;
- Choosing investment options;
- Managing investments;
- Buying property or other real estate (with certain restrictions).
In addition, other responsibilities may include applying for benefits or any other supplementary income to which the incapable person may be entitled.
Among other things, Guardians of Property should, or must:
- Keep the incapable person’s bank and other accounts, as well as transactions completely separate from their own;
- Always consider the best interests of the incapable person before determining whether any financial decision or transaction is in their benefit;
- Always manage property, finances, and investments in a financially prudent manner that maximizes the quality of life of the incapable person (in accordance with the Management Plan);
- Keep accurate records of all transactions made on behalf of the incapable person;
- Pass Accounts as required; and
- Never borrow or use the incapable person’s money for themselves, unless expressly approved by the Court.
Importantly, a Guardian of Property has no authority to make decisions of a personal nature for the person whose finances they are managing, unless they have also been made that person’s Guardian for Personal Care. Guardians for Personal Care can make decisions about health care and other personal care.
It is critical to keep accurate and thorough records of all transactions. The court will likely review the management of the funds (property) and accounts managed by the Guardian, a process referred to as ‘Passing of Accounts’. This can be a formal or informal process.
Where the court disagrees with the Guardian’s management, the Guardian may be required to return some or all of the money to the incapable person’s estate or the Court may remove the Guardian of Property.
Guardians for Property must keep a copy of the court order that appointed them as Guardian, a copy of the Management Plan, and a copy of any court orders that pertain to the management of the incapable person’s property. These will likely be reviewed during the Passing of Accounts process.
Records that must be kept by the Guardian include:
- A list of the incapable person’s assets and/or debts, if any, as of the date of the first time any transactions are made on their behalf;
- An up-to-date list of all assets acquired or disposed of on behalf of the incapable person, including the dates and reasons for acquisition or disposal, and details of the transactions;
- An up-to-date list of all money paid out or received on behalf of the incapable person, including all details associated with the transactions;
- An up-to-date list of all investments made on behalf of the incapable person, including amounts, dates, interest rates, and types of investment;
- An up-to-date list of all compensation taken by the Guardian.
It is also advisable to keep copies of all invoices or bills paid on the incapable person’s behalf.
Directions from the Court
If any difficult questions arise about the management of an incapable person’s income or property arise, the Guardian of Property can apply to the court for directions. In such instances, the Court will provide guidance on what it considers to be beneficial for the incapable individual.
If necessary, the Management Plan can be amended to account for changes in circumstances. It is important to recall that the Public Guardian and Trustee or the Office of the Children’s Lawyer represents the incapable person– and not the prospective Guardian.
Following our successful completion of our clients’ medical malpractice lawsuit, the medical malpractice lawyers at Sommers Roth & Elmaleh advise parents and loved ones of injured children on applications for Guardianship of Property, the responsibilities and obligations of being a Guardian for Property, and any related questions. We have significant experience in representing clients in medical malpractice lawsuits and in providing trusted guidance at every step of the process, including after a settlement is obtained. With offices in downtown Toronto, we represent clients in all parts of Ontario and across Canada. Call us at 1-416-961-1212 or contact us online for a free consultation.
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