There are many reasons why a person may wish to have someone else assist with the management of their finances or personal care decisions. One reason could be because he/she will be away from home for a period of time and needs someone to look after their financial affairs while they are gone. Or, it could be because of diminishing capacity to handle one’s financial and personal care decisions.
In some instances, the court’s involvement may be necessary to appoint a guardian of property or person for someone who is incapable of managing his or her finances. In such cases, it is imperative for the proposed guardian to file a comprehensive and detailed “management plan” setting out how they will look after the incapable person’s finances (or a “guardianship plan” regarding the incapable person’s personal care decisions). Even if all of the parties agree to the appointment of the guardian, the court will not automatically approve the guardian’s appointment or proposed plan. On the contrary, the court will scrutinize why it is necessary to appoint a guardian of property or person, and will carefully inspect the guardian’s proposed plan. In fact, the recent decision of Connolly v Connolly and PGT reminds us that the lack of a detailed management plan can be detrimental to the appointment of a guardian and can further delay the appointment.
In Connolly, Michelle sought to be appointed as her son’s (Taylor) guardian of property. In 2003, when he was 8 years old, Taylor was involved in a car accident. In the context of Taylor’s personal injury litigation, he received a seven-figure settlement.
Throughout Taylor’s life, Michelle managed his personal care and financial decisions (though there was no evidence that Taylor had appointed his mother as his attorney for property). Michelle therefore commenced a court application to formalize her role as Taylor’s guardian of property. In support of her application, Michelle filed a management plan and a capacity assessment concluding that Taylor was incapable of managing his property. Additionally, Michelle’s evidence was that she would not seek compensation as Taylor’s guardian of property.
Neither Michelle’s application nor her management plan were opposed by Taylor or the Public Guardian and Trustee.
The court was satisfied that Taylor is incapable of managing his finances and that his wishes are for Michelle to manage his property. The court was further satisfied that Michelle met the relevant criteria to be appointed as Taylor’s guardian of property, noting that, “to describe Michelle as a devoted and caring mother is an understatement”.
Nevertheless, the court did not appoint Michelle as Taylor’s guardian of property because it could not approve her management plan. Among other things, the court noted that Michelle’s management plan lacked specifics regarding:
- how Michelle would manage Taylor’s finances as his expenses increase over time, particularly if his caregiving expenses increase in the future;
- direct evidence from BMO Nesbitt Burns (where Taylor’s funds were to be invested) as to the payout and investment of Taylor’s settlement funds; and
- what would happen if Michelle stepped down as guardian of property (or died), and what compensation structure would be in place (if any) for the succeeding guardian of property.
Even though the application and management plan were not opposed by Taylor or the PGT, the court found that the management of a seven-figure asset is “contentious” such that the court required the direct evidence of BMO Nesbitt Burns. The court concluded that Michelle’s appointment as Taylor’s guardian of property could be revisited once further material have been filed to address the court’s concerns regarding her management plan.
As the court held in Connolly, “the court’s supervision of the guardian is premised on the terms of the management plan,” and that its “assessment of whether the guardian is fulfilling his or her obligation is determined in part on the basis of the management plan.” Connolly serves as a good reminder of the importance of providing the court with a thorough management plan, particularly when significant assets are involved.