If you need to take care of the financial affairs of someone who is incapable or for someone with a disability, and that person cannot sign a power of attorney, TBH legal can prepare and file the application requesting your appointment as the statutory guardian of property. (Ontario Only)
If you are a parent,
did you know...
When your child turns 18 years old:
- You are no longer their legal guardian,
- You no longer have legal standing as your child’s legal representative
- You can no longer make legally binding decisions on your child’s behalf
- You can no longer receive what would be considered “private personal information” (i.e.: disclosure) about your child
Wills and Powers of Attorney
In an ideal situation, every adult age 18 and above will have made the effort to properly prepare and/or have created, a Will and Powers of Attorney.
There are two kinds of Powers of Attorney (POAs):
A POA for Personal Care allows a person (attorney) to make medical treatment and personal care decisions for the grantor. When a POA of personal care is signed and properly witnessed, a POA for Personal Care is valid but can only be used as follows:
- If your attorney has reason to believe that you are incapable of making personal care decisions to which the Health Care Act does not apply (i.e.: decisions re shelter, clothing, hygiene, and safety), unless your POA of personal care specifies that you must first be proven to be legally incapable;
- If the Health Care Act applies to the decision (i.e.: medical treatment decisions), you must be incapable of making the decision before the attorney for personal care will be able to decide for you.
A POA for Property is a document which allows you (the grantor) to appoint another person (your attorney) to act on the grantor’s behalf when they are not in a position to deal with their property and financial affairs. This may be due to illness or mental incapacity or because they are traveling.
When a POA of Property is properly signed and witnessed and if there are no conditions, a POA of Property is effective as long as you are alive or until you revoke it in writing. Unless you put in a condition regarding mental capacity, a POA for Property can be used as soon as you sign it.
It is common for adults to hire a lawyer to prepare a Will, and Powers of Attorney and the creation of these documents is done with the adult’s ability to give instructions and to sign these documents. Knowing that the adult is “capable” (i.e.: has the mental capacity) of giving instructions and that the adult is physically able to sign the document is essential to ensure that the documents are legally valid and that their wishes can be carried out.
In Ontario, the Substitute Decisions Act, sets out the criteria for determining if a person has the mental capacity required to ensure that a POA is legally valid.
If your child or other family member with a disability has the mental capacity to do so, he/she should absolutely have their own will and powers of attorney.
“Capacity” refers to the mental ability to give instructions and execute documents, and there are specific capacity criteria for each type of document. It is possible to have the capacity to sign one document, such as power of attorney for personal care, but not have the capacity to sign other documents such as a will.
Where does TBH Legal fit in here?
If your adult child or other family member is found to not have the capacity to sign his or her own Powers of Attorney, it may be necessary to apply for “Guardianship”.
A Guardian is someone who steps in to make decisions for the person who lacks capacity. A Guardian of Property would be necessary for situations as when someone is in a coma, has a mental illness, profound developmental disability, brain injury, dementia, or any accident or illness that can impair cognitive ability. A Guardian is very similar to a POA as it has very similar authorities.
A Guardian of Property is responsible for the incapable person’s money, real estate, bills, vehicles, and personal belongings. A Guardian of Property can do almost anything in regards to someone’s property EXCEPT make a will, or make changes to a “beneficiary name” on the incapable person’s behalf, to an account such as for investments, insurance, etc.
Statutory Guardianship of Property does not give anyone the legal authority to make decisions about what would be typically included as Guardian of Personal Care such as: Healthcare, nutrition, clothing, shelter, safety, hygiene. Fortunately, relatives such as parents are often already the substitute decision maker for medical decisions and don’t really need that extra legal authority to make decisions over hygiene etc.
Under the Health Care Consent Act everyone in Ontario has a substitute decision-maker (SDM). We all have an automatic SDM when it comes to treatment decisions we are incapable of making. The SDM is determined using a hierarchy of decision makers.
- Guardian of Property, and
- Guardian of Personal Care.
As previously mentioned, it isn’t always necessary to seek both types of guardianship. Often, Guardianship of Property is the only one you will need.
To be awarded guardianship through a judge in court.
NOTE: Going to court is the only way someone can be awarded Guardianship of both Property and Personal Care together, or just Guardianship of Personal Care.
The second way is to be appointed Guardian of Property without going to court and that is by applying for Statutory Guardianship of Property through the Office of the Public Guardian and Trustee (PTG). (THIS IS WHERE TBH LEGAL FITS IN!!!)
The word “statutory” comes from the law, referring to a “statute”. Therefore, going to “court” is not required. The application process is much cheaper than going to court, however a capacity assessment by a designated capacity assessor is required (for an additional fee), and an in-depth management plan must be created, approved, and put into place for Guardianship of Property to be approved. Statutory Guardianship can be obtained for “property” only. This option is not available for Guardianship of Personal Care. The only way to become someone’s Guardian of Personal Care is to go to court.
NOTE: It is possible to become someone’s Guardian of Property, without becoming Guardian of Personal Care, and visa versa.
What Caregivers Need To Know About Adult Guardianship
Why apply to be the Statutory Guardianship of Property for your loved one?
- Guardianship is a way of protecting a vulnerable person, such as someone with dementia or a developmental disability
- There is no “default” Guardian of Property (like there is for personal care). No one (not even a parent or spouse) has the legal authority to access their loved one’s property, bank account etc., should the need arise, without documentation of a POA or Guardianship
- If your loved one has “property” that needs managing, someone needs to take on that role
- Without a Guardian of Property, the incapable person might face challenges such as:
- they do not have a bank account
- they are unable to submit their taxes
- they are unable to apply for ODSP or Passport Funding on their own
- they are not able to contribute to their RDSP
- they are not able to pay for the support they require such as PSWs
- they are not paying utilities and therefore risk losing heat, water, etc.
- they are vulnerable to financial exploitation from strangers or other relatives
- they are over-spending and may not comprehend how to budget accordingly
- they are not able to arrange maintenance on their home
- they are unable to pay for services to their home such as pest extermination, cleaning services, or snow removal
Will my Adult Child or Incapable Adult lose "all their rights" if I apply for Statutory Guardianship of Property?
As a parent, we want to give our kids the most independence possible when they are entering “adulthood”. For parents with adult children who have developmental disabilities, routines have been thoughtfully developed to engage and involve their child in as many decisions as possible to help them live their life to the fullest, and in a meaningful inclusive way. Because the applicant is only applying to be the “Guardian of Property”, (not the Guardian of Personal Care, or Guardian of the Person) the Adult Child / Incapable Adult will, by law, retain their rights included in the “Personal Care” component. This means the Adult Child / Incapable person will retain their rights to decisions regarding their: healthcare, nutrition, clothing, shelter, safety, and hygiene.
Will the Incapable Adult be excluded from all facets of property decision making?
It is important to note that the “Guardian of Property” has the responsibility to try and inform the incapable adult of their duties to the extent that they are able to understand. The guardian MUST encourage the incapable adult to participate, to the best of their abilities in their decisions about the incapable adult’s property.
The powers and duties of a Guardian of Property are set by law. The Substitute Decisions Act, 1992 and the regulations under that law set out these powers and duties.
Statutory Guardianship of Property Pre-Qualifying Quiz
You must be able to answer “YES” to each of these questions in order to apply for Statutory Guardianship of Property.
For an Adult Child
For an Incapable Adult
For an Adult Child
For an Incapable Adult
The TBH legal 10 Steps to Guardianship of Property
The quick version:
- Pre-Qualify using the quiz
- Be mindful of the fees that ARE required and that MAY be required – See fees
- Contact TBH legal
- Fill out the forms required to become a TBH legal client (sent to you in an email)
- Do your TBH legal “Homework” which will be provided in 2 parts (sent to you in an email)
- Pick the capacity assessor (TBH legal will provide a detailed list with fees) and have your adult child or incapable adult attend the capacity assessment
- TBH legal will complete the application process (i.e: forms, management plan etc.)
- The applicant (you) must physically sign the paperwork, and provide the capacity report to TBH legal
- TBH legal will ship it out to the PGT
- We wait for approval
Statutory Guardianship of Property Fees
(REQUIRED FEES AND POSSIBLE FEES) TO BE AWARE OF
- TBH legal Application Process Service Fee(s):
-$1,000.00 (on average) for an adult child with a disability
-$1,500.00 (on average) for an incapable adult
The “Application Process Service Fee” is paid “In Trust” to TBH legal at the beginning of the Application Process when the “retainer agreement” is signed between TBH legal and the client. This Application Process Service Fee will remain in this special “Trust” account until the Application Process Service is complete. When the Application Service Process is “complete”, (ie: all components of the application have been sent to the PGT for evaluation), the client will receive an invoice, and TBH legal will remove the money out of “Trust”.
- Capacity Assessment fee will range from $750.00 – $3,500.00 depending on the capacity assessor chosen by you. The fee is discussed between you and the capacity assessor you have chosen, paid directly to the capacity assessor, and is due when the capacity assessor advises it is due.
- NOTE 1: To apply to have your capacity fee “covered” due to low income, you must contact the Capacity Assessment Office. Please be prepared to disclose your annual family household income in order to be considered.
- NOTE 2: It is also possible that the applicant’s employment benefit package may have coverage (full or partial) towards capacity assessments. Guardianship applicant must inquire on their own, to their benefit supplier. TBH legal will not contact third parties on your behalf.
- If / when the guardianship has been approved, the PGT may ask for a filing fee of $431.66 ($382.00 plus HST $49.66). There is an opportunity to ask for this fee to be waived if this fee would cause the incapable person undue hardship. This fee will be collected from the incapable person’s property, or if insufficient funds are held by the PGT, will be payable by the applicant prior to issuance of the certificate of statutory guardianship. This fee is not due to the PGT until after the application is approved.
- A “surety bond” is like “insurance” or protection to the incapable person’s property. The premiums are paid from the incapable person’s funds. You will be notified when your application is approved whether or not a surety bond is required as it may depend on the assets. As a general rule, the PGT will require a surety bond if the incapable adult’s assets are $250,000 or more, or $500,000 including real estate, and the applicant is the spouse, partner or parent of the incapable adult. If the PGT advises that a surety bond is required, you will be sent a list of surety providers which are private insurance companies, (not government agencies) to contact.
- NOTE: If the applicant resides outside of Ontario, Canada, they will be asked to provide a bond regardless of the value of the incapable person’s assets.
- Disbursements invoiced by TBH legal may include: shipping/mailing fees; scanning and/or photocopy expenses; any other fee pertaining to the application process discussed and /or unforeseen in advance of the signing of the retainer.