A guardianship application involves applying to the court to be appointed as an incapable person’s substitute decision maker for property management and/or personal care decisions.
When a party applies to the court to be named a guardian, this usually means that the incapable party did not have a power of attorney in place. The process can be stressful and regularly arises when family members realize they need to begin making financial decisions for the incapable party but are unable to do so without a power of attorney for property in place.
To complicate matters further, applicants seeking to be a loved one’s guardian of property are regularly required to obtain expensive bonds as security to ensure the safety of the incapable party’s assets.
The judge hearing the guardianship application will determine whether or not it is appropriate to forgo the requirement that a guardian obtain a bond (see: Grant v Robinson, 2024 ONSC 1558 and Connolly v. Connolly and PGT, 2019 ONSC 4148).
It is important to discuss with a lawyer the information a judge will need to determine whether a bond is necessary in the case at hand. Every situation is different, but it is often helpful to provide evidence on the following:
- The proposed guardian’s relationship to the incapable party. For example, a court may be less inclined to order that the spouse of an incapable party obtain a bond, especially where assets have always been jointly held between the proposed guardian and the incapable party.
- Whether the proposed guardian resides in and has assets in Ontario that could be used to repay the incapable party in the event funds are mismanaged or misappropriated.
- Information on the incapable party’s assets and the funds required to meet the incapable party’s care needs.
- Information on the estimated cost of a bond and whether the cost will be burdensome for the incapable party or is disproportionate to their assets.
- Whether the incapable party has made any specific gifts in their will.
- The proposed guardian’s intention to continue relationships with or retain professionals such as accountants and financial advisors to provide advice on investment strategy and the incapable party’s financial obligations.
- A plan to seek an order that the proposed guardian shall bring an application within two to three years to “pass their accounts”. A passing of accounts application requires the guardian to show the court all transactions related to the incapable party’s funds during the accounting period. The need for a bond can be reassessed on each passing application.
- A clear, common sense management plan that shows how the proposed guardian intends to manage the incapable party’s funds.
Overall, when bringing a guardianship application, it is critical to provide evidence on the proposed guardian’s honesty, integrity and their dedication to acting in the incapable party’s best interest. These factors and the specific examples above may militate against a finding that a bond is necessary.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.