To Guard Or Not To Guard - That Is The Question

As my parents, my in-laws and my friends’ children get older I realize that Ponce de León did not find the Fountain of Youth and nor have I. So far (as I knock on wood) everyone is in good health but what would you do if someone that you loved developed Alzheimer’s Disease or some other dementia and could not manage his or her property anymore? What could you do to help?

On the assumption that your loved one has not created a power of attorney or a living will and your loved one can no longer manage his/her own finances, then the answer is that you can become their guardian of property.

A guardian of property is someone who is appointed by either the Court or by the Office of the Public Guardian and Trustee to manage the financial affairs of a person who is mentally incapable of doing so for him or herself. Usually the guardian of property is appointed after a person has become incapable and it is usually done because the incapable person never made a power of attorney in advance.

What is the Role of a Guardian?

As a guardian of property, you are stepping into the shoes of the incapable person for the purpose of making financial decisions and transactions on that person’s behalf. Your purpose is to protect the welfare of the incapable person and indirectly help others whose own financial interests are connected to those of the incapable person.

As a guardian, although you have the right to make decisions about the incapable person’s income or assets, ownership of the property does not transfer to you. Ownership remains in the name of the incapable person. Similarly, as a guardian, you do not become personally liable for any of the incapable person’s financial obligations. As a guardian you are responsible for managing the incapable person’s financial obligations in the best way possible.

Who can become a Guardian?

Any adult family member or friend may become a guardian for the incapable person. If there is no family member or friend who wants to take on that responsibility then the provincial department of the Office of the Public Guardian and Trustee will act as guardian.

Authority of a Guardian

As a guardian of property, you are allowed to do anything on behalf of the incapable person in relation to his or her property. The only exception is that a guardian of property can’t make a will on behalf of the incapable person.

For example, a guardian for property can:

open and close bank accounts

redirect pension and other income

apply for benefits or supplementary income to which the incapable person would be entitled

deal with any investments

collect debts

pay bills

buy goods or services

lend, sell, store or dispose of personal belonging, or

maintain or sell a house or a vehicle

How do you become a Guardian?

There are two ways in which you can become a guardian for an incapable person. The first option involves a two step process in which the Public Guardian and Trustee becomes the statutory guardian. Once the Public Guardian and Trustee is guardian for the incapable person you can then apply to transfer the guardianship from the Public Guardian to yourself.

The other option to becoming a guardian for the incapable person is to bring a court application to obtain a court order that appoints you as the guardian of property for the incapable person.
Regardless of which method is used to obtain the appointment, in preparation for the guardianship role, you will have to complete a Management Plan which is a summary of all the incapable person’s assets and how you intend to deal with each asset. Assets are considered to be real estate, general household items, motor vehicles, valuables, money, securities, investments, income, expenses and any other personal property.

If you are applying to be a guardian and you live outside the province of Ontario, then you will be required to post security (generally in the form of a surety bond). The amount of security will depend on the value of the incapable person’s property and will be determined by the Office of the Public Guardian and Trustee.

Duties of a Guardian

The following are the general duties and responsibilities of a guardian:

As a guardian, you must keep the incapable person’s financial accounts and transactions completely separate from your own. You must never borrow or use the incapable person’s money for yourself.

The role of the guardian is to maximize the quality of life of the incapable person which means that as a guardian, you must consider the personal comfort or well-being of the incapable person.

To the extent possible, you must encourage the incapable person to participate, to the best of his or her abilities, in your decisions about the property and you must keep them informed of your powers and duties as a guardian.

You must discuss the financial decisions and transactions you make with family members and friends who are in regular contact with the incapable person and with people who are providing personal care.

You must make reasonable efforts to find out if the incapable person has a will and if so what the will says. If the incapable person does have a will and has gifts of property then you must retain that property so that it may be passed on in accordance with the incapable person’s will. However, you may have to depart from this rule if selling property is absolutely necessary for you to fulfill your duties to the incapable person while he or she is alive.

You are required to keep copies of invoices, cancelled cheques and bills you have paid on behalf of the incapable person.

Record Keeping

As a guardian, you are required to keep the following records of the incapable person’s property:

A list of all of the incapable person’s assets as of the date of the first time you make any transaction on the incapable person’s behalf

An up-to-date list of all assets acquired and disposed of (bought, sold, loaned, or given as a gift) on behalf of the incapable person. You must include the date and reason for acquiring or disposing of the property and the name of the person from or to whom the asset was acquired or given

An up-to-date list of all money that you pay out or receive on behalf of the incapable person, including all details associated with the transaction

An up-to-date list of all investments made on behalf of the incapable person, including amount, date, interest rate and type of investment

An up-to-date list of all of the incapable person’s debts as of the date of your first transaction as guardian

An up-to-date list of all liabilities that you have paid off or taken on, if any, on behalf of the incapable person, including the date, the nature of the liability (to whom or for what does the person owe or no longer owe money) and the reason for its being discharged or incurred, and

An up-to-date list of all compensation that you take, including the amount, date and method of calculation and a list of assets and the value of each asset used to calculate your management fee, if any.

You are required to keep these records and accounts until you no longer have guardianship over the property and one of the following events occur:

another person is given the authority to manage the incapable person’s property and you deliver the accounts and records to that person

the incapable person dies and you deliver the accounts and records to the person with legal responsibility for the estate

you are discharged from your duties by the court and the time for appealing the decision has expired or you are being discharged on appeal

a court order directs you to destroy or dispose of the accounts and records, or

you are provided with a release that relieves you of any further personal legal responsibility for your actions as a guardian.

Legal Advice

Since you are managing property for a person who is unable to manage property for themselves, the law sets out specific and strict requirements to be followed. The duties and responsibilities listed above are the standards that most people would want in place if someone was managing their property while they were incapable. Once you understand your responsibilities and you are willing to approach this task with the necessary attention and care, you should feel comfortable becoming a Guardian for Property.

Marcia A. Green is a lawyer at BrazeauSeller.LLP. She practices in the area of commercial and construction litigation.

By: Marcia A. Green

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