Why You Want to Have a Power of Attorney (2008)
I recently called the Office of the Public Guardian and Trustee in Ontario (“OPGT”) to discuss generally, their role in people’s lives where they become incapacitated and unable to manage either their property or personal care. Here is what I learned in respect to the OPGT becoming a statutory guardian of property.
The OPGT considers itself a guardian of last resort, meaning they do not wish to step in to become a guardian but will only do so if the incapacitated person does not have a Power of Attorney and there is no one willing to apply to be a guardian or they are unaware that the person has a valid Power of Attorney for Property (“PoA”).
Section 16 of the Substitute Decisions Act (Ontario) (“SDA”) states that “a person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section”. The section stipulates however that no assessment will be made unless the person requesting the assessment has made reasonable inquiries about whether the incapacitated individual made a Power of Attorney for Property or if not, whether a spouse, partner or relative intends to make an application under s. 22 of the Substitute Decisions Act for to replace the OPGT as guardian of property. In other words, if your spouse, partner or relative becomes incapacitated and has no valid Power of Attorney and you or another relative are not prepared to act as that person’s guardian of property, you may request a capacity assessment which will then be sent to the OPGT at which point that office will become that person’s guardian of property (called “statutory guardian”).
The statutory guardianship of property is terminated if the “incapable person gave a continuing power of attorney before the certificate was issued and the power of attorney gives the attorney the authority over all of the incapable person’s property and the OPGT receives a copy of the PoA and a written undertaking signed by the attorney to act in accordance with the PoA and if someone has replaced the OPGT as a statutory guardian (s.16.1). The OPGT may refuse to appoint the applicant however, unless the applicant provide security in the manner and amount fixed by the OPGT. If the OPGT refuses to grant the application, the OPGT shall apply to the court to decide the matter. The court may order such conditions as is necessary.
Only the incapable person’s spouse, partner or relative, attorney named in a PoA or a trust corporation if the incapable person’s spouse or partner consents in writing, may apply to replace the OPGT as a guardian (s.17(1)). Note that this section contemplates that even if a person has a PoA, the OPGT can still become a statutory guardian, presumably before the OPGT finds out that the person has a PoA. In other words, if you have a PoA, give a copy to your attorney(s) named in it so they can produce it quickly if necessary.
The upshot of all of this is that it is easier, less expensive, more expedient and more convenient for everyone, if people would simply attend at a lawyer’s office to prepare a Power of Attorney for Property and Personal Care and be able to produce it when necessary in order to avoid the involvement of the OGPT.
