Guardian of Property in Ontario When There Is No Power of Attorney

When an adult can no longer manage their money and never signed a continuing power of attorney, families often wonder who can step in to pay bills, sell a home or deal with the bank. Families often find this out in the middle of a crisis, when a parent or spouse has been hospitalized or has declined quickly.

Ontario has a process for this situation. It starts with a capacity assessment and, if the person is found incapable, usually ends with the Public Guardian and Trustee (PGT) in charge, unless a family member successfully applies to take over. This article explains the steps in plain terms.

When statutory guardianship applies

Statutory guardianship of property through an assessment is meant for people who have no continuing power of attorney covering all of their property. The person asking for the assessment has to make enquiries and believe that no such power of attorney exists.

If a continuing power of attorney covering all of the property does exist, this route is not the right one. An attorney whose power of attorney does not cover all of the property may apply to replace the PGT as guardian. Before you start, search the person's papers, ask their lawyer and bank, and talk to other relatives.

How the assessment route works

Under the Substitute Decisions Act, 1992, any person may ask a capacity assessor to assess another person's capacity to manage property. The purpose is to decide whether the PGT should become that person's statutory guardian of property.

The request must be made on the prescribed form, which is Form 4 under O. Reg. 26/95. The requester must state that they know of no attorney under a continuing power of attorney who has authority over all of the person's property.

• If the assessor issues a certificate of incapacity, the PGT becomes the person's statutory guardian of property.
• The person found incapable must be told they can apply to the Consent and Capacity Board for a review of the finding.
• Capacity assessors set their own fees, and in most cases the person who asked for the assessment pays.

A different path for psychiatric facility patients

If the person is a patient in a psychiatric facility, no capacity assessor is involved. A physician issues a certificate of incapacity under the Mental Health Act, and the officer in charge sends it to the PGT. The PGT then becomes statutory guardian of property under section 15 of the Substitute Decisions Act.

Replacing the PGT with a family member

Many families do not want a government office managing their loved one's affairs. Under section 17(1), the incapable person's spouse or partner, or a relative, may apply to the PGT to replace it as statutory guardian. An attorney under a continuing power of attorney that does not cover all of the property may also apply, as may a trust corporation if the spouse or partner consents in writing.

The application uses Form 1 under O. Reg. 26/95, and a management plan on Form 2 must come with it. If the application is approved, the guardian must follow the management plan.

In deciding, the PGT must consider the incapable person's current wishes and how close the applicant's relationship is to them. The PGT may also refuse to appoint the applicant unless they provide security in an amount the PGT sets. The PGT charges a $382 fee to review the application, payable when the Certificate transferring guardianship is issued.

Duties of a guardian and the court option

A guardian of property is a fiduciary and must carry out their powers and duties diligently. What that requires day to day depends on the situation, so it is worth confirming with a lawyer. A guardian may take annual compensation according to the prescribed fee scale.

Instead of replacing the PGT, a person can apply to the Ontario Superior Court of Justice to be appointed guardian of property by a judge. This is the option for an applicant who is not a spouse, partner or relative, or who prefers the court route.

What to do next

• Search for any power of attorney: check home files, safety deposit boxes, and ask the person's lawyer, bank and relatives.
• Gather a list of the person's income, accounts, property, debts and regular bills.
• Speak with the person's doctor or care team about who can carry out a capacity assessment.
• Decide whether you want the PGT to act or want to apply to replace it, and start drafting a realistic management plan.
• Talk with a lawyer if family members disagree, if the person objects, or if the property is complex.

Frequently asked questions