February, 2022

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What is the process for guardianship applications in Ontario?

Disclaimer: This article discusses the process for an application for guardianship. It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

One thing is true – we are all aging, which can bring many challenges. For example, perhaps our parents are getting older, and we are concerned with their ability to care for themselves. Or maybe you have an adult child who may not be able to care for themselves for one reason or another. 

If so, it may be time to talk about guardianship. 

You might see the word “guardian” and wonder, “Wait, I’m looking for information on adults, not children. Am I in the wrong place?” 

Rest assured, you are not. In this context, guardianship refers to adults who, due to illness, an accident or other reasons, cannot make decisions for themselves and require another person to step in and make those decisions.

If you find yourself in this scenario, you may have a lot of questions. In this article, we will answer:

  • What is guardianship and who can be a guardian?
  • How does the law define mental incapacity?
  • What are the differences between a power of attorney and guardianship
  • What is the difference between guardianship of property and guardianship of a person?
  • How do you apply for guardianship?

We hope the answers to these questions give you peace of mind about the process, and we encourage you to book a call with our office to discuss your specific situation further. Our team can help you with compassion and care during this emotionally charged situation.

What is guardianship and who can be a guardian?

Simply put, guardianship means that someone steps in and takes on the decision-making responsibilities for an incapable adult. It is a means of protecting someone who would otherwise be vulnerable.

The Substitute Decisions Act, 1992 governs this process and you must work with the Office of the Public Guardian and Trustee (OPGT).

Anyone over the age of 18 can be a guardian, but you should have a close relationship with the incapable person and demonstrate why you are trustworthy and responsible.

How is mental incapacity defined?

Mental incapacity is a term used to describe someone who cannot make decisions for themselves due to illness or injury. A specific class of professionals called capacity assessors make this determination. You can read more about capacity assessments here.

What is the difference between a power of attorney and guardianship?

A power of attorney sets out someone’s wishes if they cannot make decisions related to their property or personal care. It is preferable to have a power of attorney because you choose who will decide on your behalf if you become incapacitated.

When someone does not have a power of attorney in place, if a power of attorney is invalid, or if the named person is unwilling or unable to take on that responsibility, then you need to discuss guardianship.

What is the difference between guardianship of property and guardianship of a person?

A guardian for property is responsible for managing anything that the incapable person owns. In contrast, a guardian of a person is accountable for decisions related to health care, nutrition, shelter, clothing, hygiene, and safety.

A guardian of property can open and close bank accounts, pay bills, apply for benefits and buy goods and services. However, they cannot make personal care decisions, make a will on the incapable person’s behalf or sell property that is specifically gifted in a will (although there are some exceptions to this).

A person may be capable of making some decisions and not others. A guardianship is limited to the types of decisions that an incapable person cannot make, as determined by the courts.

How do you apply for guardianship?

In some instances, a person may not currently have a guardian but need one. An application for guardianship would be made to the court to have a guardian appointed.

In other circumstances, the OPGT has been named the guardian, and you would need to apply to replace them. This is called statutory guardianship.

In both cases, you would need to complete an application for guardianship. That application includes an affidavit that provides evidence of:

  • the person’s incapacity (including two capacity assessments);
  • the need for a guardian;
  • who the guardian should be; and
  • the proposed guardian’s plans.

A Management Plan sets this all out for guardianships of property. A Guardianship Plan outlines personal care decisions.

Do I need a lawyer for an application for guardianship?

While you can technically apply for guardianship without an attorney, it would be unwise. The law and the courts are very stringent when it comes to appointing a guardian, as it removes a person’s autonomy in that area. Therefore, you must follow the application and process closely.

We strongly recommend that you speak to us about a guardianship application so that you can smoothly move through the process. This is especially important if your need for guardianship has become more urgent. For example, the bank may freeze an account due to incapacity, but ongoing expenses remain.

Plan Ahead

Guardianship applications usually come about because someone fails to prepare a power of attorney or has one that is invalid at law. We cannot stress enough the importance of ensuring that an estate lawyer documents your wishes and decisions.

At Beeksma Law, our team can help you plan well in advance to care for and protect you and your loved ones.

What is a Capacity Assessment in Ontario? When May You Need One?

Disclaimer: This article on capacity assessments in Ontario is intended for the purposes of providing information only. It is not to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice. It does not purport to be exhaustive.

Every day we make thousands of decisions. In fact, we don’t even realize how many choices we make.  However, our society generally recognizes that as adults, we can make our own choices. This applies from the trivial (what to eat for breakfast) to the significant (how to invest our money).

In some instances, someone may question a person’s ability to make those serious choices. That may be when a capacity assessment is required. This can be a complex area of law, so we want to give you a brief overview. In this article, we will cover:

  1. What is a capacity assessment?
  2. Why might you need to have one done?
  3. How is capacity determined?
  4. Who is qualified to perform a capacity assessment?

If you believe that a capacity assessment is necessary for someone that you love, you may have a lot of questions. It can be very emotional and overwhelming. We encourage you to read the below article and then book a call here. Our team would be more than happy to discuss your specific needs further.

searching for information on capacity assessments in ontario

What is a capacity assessment?

The Substitute Decisions Act, 1992 governs the process for capacity assessments. It is used to determine whether someone is able to understand the facts of a situation and reasonably recognize the foreseeable effect of their decisions.

The decisions in question can relate to both property or personal care matters.

The law assumes that everyone is capable until someone proves otherwise. Therefore, it is up to the person seeking the capacity assessment to prove that the person is mentally incapable.

Why might you need a capacity assessment?

There are a few scenarios in which a capacity assessment is required.

First, a person may not have a power of attorney but can no longer make personal or financial decisions. The court may grant a guardian, meaning another person would have the legal authority to make decisions on their behalf. However, before granting that authority, the courts would have to determine that the person is mentally incapable.

In some instances, someone may have a power of attorney. However, it may clearly state that their mental incapacity must be proven before that power of attorney comes into effect. Unless there is wording that states how that should be proven, you would need a capacity assessor’s opinion.

We have also seen financial institutions request a capacity assessment, even with a power of attorney in place. It may be that a bank will freeze an account until such an assessment is provided, which can quickly cause issues for the attorney for property!

When preparing a will or power of attorney, you may also question whether the person is mentally capable enough to understand the impact of these documents. You may want a capacity assessment in that scenario. 

Of course, you may request a capacity assessment if you are an attorney for property or personal care. You may be unsure if it is time for you to step in and begin making decisions.

How is capacity determined?

There is no legal definition of capacity. The Substitute Decisions Act simply defines “capable” as “mentally capably”.

While the Capacity Assessment Office provides guidelines, determining capacity is not an exact science.  It also relates to certain types of decisions. For example, someone may not be mentally capable to manage their assets. However, they are capable of making decisions about their personal care.

However, assessors apply general protocols for each assessment. Capacity for managing property means that someone understands details about managing their property and appreciate the impact of their choices. Capacity for a person’s personal care means they understand facts about their health care, nutrition, shelter, clothing, hygiene and safety, and are aware of the impact of those decisions.

There is one nuance that is worth noting. Someone can make a “bad” or “unusual” choice, or even make a decision that appears to go against their interests. This does not mean that they are mentally incapable.  What matters is the person’s mental ability to reason and process the relevant facts.

Capacity is also very specific to that decision made in that situation and moment of time. We cannot describe people as completely capable or incapable. Instead, the courts view capacity on a case-by-case basis and the specific facts are a large factor into that decision.

Who is qualified to perform a capacity assessment in Ontario?

Many times, our clients ask if a family doctor can perform a capacity assessment. The short answer: probably not. A doctor’s note will not provide the required information to determine whether someone is capable or incapable.

As we noted, the Substitute Decisions Act, 1992 outlines many instances that require an official capacity assessor to perform the capacity assessment.

The Capacity Assessment Office lists all capacity assessors by region. They are quite costly, but the Capacity Assessment Office does provide financial assistance in some cases.

Capacity Assessments in Ontario – Where Do I Begin?

Again, capacity assessments can feel very overwhelming. At Beeksma Law, we are here for you. Our caring and proactive approach will help you navigate this process and allow you to care for your loved ones.

If you would like to book a call to discuss any of your estate needs, please do so here. Our team would be more than happy to meet with you.

What is a Certificate of Pending Litigation in Ontario Estate Law?

Disclaimer: This article answers the question, “what is a certificate of pending litigation?” It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Updated: February 2023

In estate law, one tool that is commonly used is called a Certificate of Pending Litigation (CPL). It is an injunctive form of relief, meaning that it is an order by a court that stops or prohibits something from happening.

In this article, we will outline what a CPL is, why you may need one, and the tests that the court will apply to determine if one should be granted. 

Estate disputes can be heated and overwhelming. It is certainly not something you want to handle on your own. We encourage you to book a call with our team so that we can discuss your unique situation.

What is a certificate of pending litigation (CPL)?

A certificate of pending litigation is an order that is issued by an Ontario court, and registered on title, that gives notice that there is a claim related to the property underway. This order prohibits anyone from dealing with the land, such as selling or mortgaging the property.

The only way to have a CPL registered or removed from the property’s title is by a court order.

a court will issue a certificate of pending litigation

When may you need to seek a CPL in estate litigation?

You may need a CPL if your rights to property are being challenged, and you want to protect them. For example, there may be disputes about an estate’s beneficiaries, or disagreements about what property is included in the estate.

How do the courts decide whether to grant a certificate of pending litigation?

What is an “interest in land”? The threshold for this definition is very low – the court must determine “whether there is a triable issue”. The court will not consider how likely the plaintiff is to succeed in the claim, just whether or not there are grounds to make a claim.

Additionally, the courts begin in the position that such an issue exists. The onus is on the party opposing the order to show that there is no triable issue.

However, that does not mean that applying for a CPL is easy or a sure thing.

The other major issue that the courts must look at is whether a CPL is just, depending on the situation’s unique circumstances. Generally speaking, the court will consider some or all of the following factors:

  • is the plaintiff a shell corporation (generally not applicable in estate litigation);
  • is the land unique;
  • the intent of the parties acquiring the land;
  • whether there is an alternative claim for damages;
  • the difficulty or ease of calculating damages;
  • whether damages would be a satisfactory remedy; and
  • the prejudice or harm to the parties if the CPL is discharged, with or without security.

For example, there is a large difference between a beneficiary’s interest in a family cottage that has been passed on for generations and an ordinary subdivision home that the deceased resided in for a short time. In the first instance, monetary damages may not be a suitable remedy and may be difficult to calculate.

Of course, every situation is unique. Again, it would be wise to speak to us about your circumstances to determine if a CPL should be requested on a motion to the Court.

Certificate of Pending Litigation – A Tool to Use, Not Abuse

The courts have clearly shown that they will not tolerate it when this process is abused. A CPL is not to be used as a “scare tactic” or in some other questionable manner. In fact, doing so opens you to the possibility of a counterclaim wherein you may be responsible for damages.

The Right Tools for the Right Solution

At Beeksma Law, our team will work to make sure that you have the right tools for your problem, and we will fight hard for a just outcome. We encourage you to book a call with our team so that we can discuss your situation.

Estate Law Changes in 2022: What It Means For You

Disclaimer: This article on estate law in Ontario is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive

We have spoken before about how important estate planning is, whether it is the documents that you need besides a will, or how to protect the important people in your life. 

However, estate planning is not a “set it and forget it” type of process.  If there is one thing that we know, it’s that change is a constant.  Think about your life in the past five years. Perhaps your family has grown or changed. Maybe you now own a business or a home.   Perhaps you appointed someone for an important role in your estate, such as your executor, but they are no longer the right fit.

There are also recent changes to the laws that regulate estates in Ontario. In this article, we will outline what those changes are and how they may affect your estate planning. Of course, if you want to discuss your specific needs, please book a call. Our team is always happy to help.

Legal

Estate Law in Ontario – The Background

In April 2021, the Accelerating Access to Justice Act, 2021 came into law in Ontario. Many of those changes came into effect on January 1, 2022. They apply to any wills where the deceased dies after that date.

Wills & Marriage

Up until now, a previous will would be revoked when you got married unless specific provisions were included to the contrary.

That entire section was repealed (or removed).

Separated Spouses

We see this happen from time to time. A couple separates but never formally divorces. Decades pass, estate documents are never updated, and one of the spouses passes away. The surviving spouse, despite being separated, can still inherit part of the former spouse’s estate.

While it makes sense that our wishes would change after a relationship ends, many do not appreciate the need to update their will.

Separated Spouses – Before 2022

Previously, gifts, appointments, and rights to inherit under intestacy laws (for those who died without a will) were all revoked when a couple got divorced. The law would treat the situation as if the ex-spouse had previously died. They could not act as the executor or inherit anything under that will.

Separated Spouses – Changes in 2022

That now extends to separated spouses. Those gifts and rights are revoked once the spouse meets the definition of “separated”. This applies equally if there was a will or if the person died intestate (or without a will).

Notice how “separated” is defined: 

“A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,

(a) before the testator’s death,

(i) they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,

(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,

(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or

(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and

(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage. 2021, c. 4, Sched. 9, s. 4 (2).

Succession Law Reform Act

If you are not sure if you and your spouse are separated, it’s best to speak to us about your specific situation.

What about common law spouses?

The law for common law spouses’ estates has not changed. The rules discussed above only apply to married spouses.  This is one area where Ontario differs from other provinces like Alberta or British Columbia.

A person signing a will after realizing that there were changes to estate law in Ontario

New substantial compliance rule

Ontario used to follow a “strict compliance” rule. This meant that there was no flexibility – if a will did not meet a technical requirement, it was not deemed a valid will. You can only imagine the grave consequences for families when small errors resulted in significant consequences!

Now, a judge can find a will to be valid there is “substantial compliance”. A judge may be satisfied that the document “sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased”. On that basis, the court may deem it as valid and fully effective.

It’s important to note that this new rule specifically excludes electronic wills. It also does not apply to other estate documents, such as Power of Attorneys.

Looking to The Future – Estate Law in Ontario

These laws are very new in Ontario. Therefore, there will be litigation over time where the courts will interpret the law. For example, how far does the concept of “substantial compliance” reach? How will Ontario courts compare to other provinces that have had these laws in place for years?

What about your estate planning? 

Regardless of how the law changes, it’s always a good idea to review your will on a regular basis to ensure that it still reflects your wishes. If you have any questions about these changes and how they may impact you, or about your estate planning in general, please don’t hesitate to contact our office for a consultation. You can book a call here.