Aug 8, 2025
This blog is part 2 of a series which started with this one: “Re-thinking Power of Attorney Litigation.”
My first modest suggestion for power of attorney (“POA”) litigation is to fully explore clients’ assumptions about the rights and powers of POAs before initiating litigation.
If the aggrieved party uses words like “power”, “in charge” and “control” when describing the role of a POA, rather than “duty”, “responsibility”, “accountability” and “service”, it is a sign that the person who wants the job doesn’t fully understand the role.
For example, I am shocked by the number of children who believe that as soon as the family home is sold and a parent enters a care setting, that is the time to divide up the house sale proceeds among themselves. They mistakenly think that the POA gets to decide how and when to divide up the parent’s money. Not so. The incapable person’s money must be carefully managed solely for the incapable person’s benefit during his or her lifetime.
Yes, that is true even if the nursing home costs will not exceed the incapable person’s income. Yes, that is true even if the children are all counting on their inheritance as a pathway to home ownership and would like to receive at least part of their inheritance early. Yes, that is true even if the parent’s dementia has progressed to the point that he or she would not even miss the house sale proceeds.
Another common reason litigants want to be “in charge” is the mistaken belief that a POA can make unilateral decisions without talking to anyone else. POA litigation usually involves high conflict families. The person who wants to be POA or Guardian of Property needs to understand that, if successful, there will be a duty to consult with supportive family members and friends of the incapable person, including the despised sibling.
The Substitute Decisions Act uses the word “consult” to describe this duty on substitute decision makers. This is different from informing after-the-fact. To do the job of POA correctly, the POA will need to share all information relevant to a substitute decision with the incapable person’s family members, then listen to their feedback and opinions before implementing a substitute decision. If you are unable or unwilling to communicate effectively with your immediate family members, you are not qualified for the job.
Before initiating POA litigation, I often refer clients to this helpful summary of the duties and obligations of Guardians of Property on the Public Guardian and Trustee’s website [1].
It is important to fully explore how taking on this 24/7 responsibility will impact the POA’s life. Vacations could be interrupted by a call from the nursing home. POAs will face practical problems like banks that won’t provide online access to bank accounts and paid caregivers who don’t work out. Tax returns to be filed, forms to be filled out, doctor and dentist appointments to be tracked, medications to be managed. The POA will ultimately be responsible to account to the beneficiaries of the incapable person’s estate, and possibly the Court, about every transaction during the POA period. A lost receipt could become a personal liability.
These duties and obligations should be fully explored before heading down the destructive and expensive path of POA litigation so that the client has eyes wide open about what “winning” entails.
[1] Most of the duties imposed on Guardians of Property are also applicable to fiduciaries acting under a power of attorney, the primary distinction being that a Guardian of Property will be obligated to act in accordance with a Management Plan and will have to pass accounts to the Public Guardian and Trustee by a particular deadline.
Angela Casey
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.
Mar 11, 2025
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.
Rebecca Suggitt
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.
Jun 30, 2023
Choosing to act as an incapable person’s attorney or guardian of property is a considerable and important responsibility. Part of that responsibility is keeping a clear record of all money coming into and leaving the incapable person’s hands. Pursuant to section 32(6) of the Substitute Decisions Act, attorneys and guardians of property are required to keep accounts of all transactions involving the property of the incapable person.
It is important for guardians to maintain accurate, thorough accounts for several important reasons. First and foremost, keeping proper accounts is a part of a guardian’s fiduciary duty to the incapable person and the legislation requires that you do so. Second, keeping thorough accounts can protect you from personal liability if you are required to pass your accounts. Third, the guardian’s compensation is tied directly to the incapable person’s receipts and disbursements.
Below are some helpful tips for guardians and attorneys keeping accounts:
1. If possible, speak with the grantor of the Power of Attorney prior to that person becoming incapable. Discuss their wishes, assets, and where they are keeping their will. Continue these conversations after you begin acting as an attorney or guardian and encourage your loved one to participate, to the best of his or her abilities, in your decisions about their property.
2. Review the Power of Attorney document. Often the Power of Attorney will stipulate whether there are any limitations on how you can manage the incapable person’s property.
3. If you are a guardian for property, you must follow the court-approved Management and Guardianship Plans. If any material change is required to your Management Plan, you should prepare an amended Management Plan and submit it to the Public Guardian and Trustee for approval.
4. Locate and review the incapable person’s Will. If property is specifically gifted in a will, it cannot be sold unless it is necessary to care for the incapable person.
5. When you are named guardian or begin acting as an attorney, make a list of all the incapable person’s assets (whether solely or jointly owned). Assets include real estate, money, securities, investments, motor vehicles, other personal property, etc.
6. Keep a record of all transactions you make on the incapable person’s behalf. It is important that you keep a copy of all receipts and bank statements. These can be maintained in a binder, or scanned into an electronic folder regularly. If maintaining these digitally, ensure that your files are backed up.
7. Keep the incapable person’s financial accounts and transactions completely separate from your own.
8. Consult regularly with the incapable person’s supportive family members and friends about decisions that you make with respect to the incapable person’s property.
9. Most importantly, the incapable person’s comfort and well-being should guide each decision that you make with respect to their property. You are required to exercise your fiduciary duties diligently, with honesty and integrity, and in good faith for the incapable person’s benefit.
10. You have a right to seek advice and direction from the court to deal with questions about your obligations, and the incapable person’s legal rights. This is not meant to displace your duty to make tough decisions as a substitute decision maker, but to provide you with judicial guidance in complex situations.
Rebecca Suggitt
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.
