Estate Planning

The Power of the Public Guardian and Trustee

By Hull & Hull LLP

Last night, I overheard a distressed woman confiding to a friend about a relative who was declared incapable of managing her property. The Public Guardian and Trustee (“PGT”) had stepped into her shoes to take control and to care for her property. This case peaked my curiosity, so I went home and did some research on this topic. 

Pursuant to Section 15 of the Substitute Decision Act (“SDA”), the PGT can be declared a person’s statutory guardian of property where a certificate is issued under the Mental Health Act (“MHA”) certifying that a person who is a patient of a psychiatric facility is incapable of managing property. Whenever a patient is admitted to a “psychiatric facility”, as defined by the MHA, a physician examines the patient to determine if he or she is capable of managing property. If the physician determines that the patient is not capable of managing property, then he or she must issue a certificate of incapacity. The certificate is subsequently sent to the PGT. As a result, Section 15 is triggered and the PGT steps in as the statutory guardian without any procedural requirement.

Pursuant to Section 16 of the SDA, the PGT can be declared a persons statutory guardian of property where a person requests an assessor to perform an assessment of either their capacity or another person’s capacity. This assessment is done with the view of determining whether the PGT should become the statutory guardian’s of the property. If a person wishes to request that an assessor perform an assessment of another person’s capacity, the person requesting the assessment must: (i) have reason to believe that the other person may be incapable of managing property, (ii) have made reasonable enquiries and have no knowledge of the existence of any attorney under a continuing power of attorney, and (iii) have made reasonable enquiries and have no knowledge of any spouse, partner or relative of the other person who intends to make an application for the appointment of a guardianship of property.

Thank you for reading and I hope my blogs added extra flavour to your favourite morning beverage. 

Rick Bickhram

Full post as published by Toronto Estate Law Blog on August 08, 2008 (boomark / email).