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Digest of the Week | Incapacity and Guardianship

Digest of the Week | Incapacity and Guardianship

Ontario Court of Appeal considers incapacity and the appointment of guardians

Childs v. Childs | 2017 ONCA 516 | Ontario Court of Appeal

Mental incompetency -- Administration of estate of mental incompetent -- Committee, quasi-committee or guardianship -- Appointment -- Challenges to appointment

Mother, age 90, suffered from Alzheimer’s disease -- Her four children could not agree on her care -- M and A applied for declaration of mother’s incapacity and their appointment as guardians of her personal care and property -- P and C applied for P to be appointed as guardian of mother’s property and C as her guardian for personal care -- Counsel was appointed for mother under s. 3 of Substitute Decisions Act, 1992 ("s. 3 counsel") -- Applications judge appointed C as guardian of mother’s personal care, bank as guardian of her property, and M as her litigation guardian ("applications decision") -- C was awarded $25,000 in compensation for past care she had provided for mother, and $500 per month going forward as manager of her personal care -- C then advised that she was arranging for full-time professional care for mother while she sought outside employment due to low compensation -- On motion by s. 3 counsel ("variation motion"), order appointing C as guardian of mother’s personal care was varied to appoint M as joint guardian for personal care and to compensate C $50,000 per year for her services -- P and C appealed applications decision, and C appealed appointment of M as joint guardian for mother’s personal care -- Appeals dismissed -- There was no merit to appeals, which were culmination of unnecessarily protracted litigation that had depleted mother’s estate, wreaked havoc on emotional and financial health of all concerned, wrongfully maligned s. 3 counsel, and wrongfully impugned applications judge -- There was no palpable and overriding error in finding that P and C consented to bank’s appointment as guardian of mother’s property -- C’s claim for increased compensation for past personal care services, failed because applications judge found that C had gratuitously provided care in question -- Applications judge based amount of C’s compensation on finding that C would continue to provide personal, unpaid care to her mother -- Compensation for C going forward was for services she provided as guardian of mother’s personal care, but while C continued to live in mother’s home she was to provide personal care for mother without compensation -- There was no basis on which to interfere with applications judge’s order appointing M, rather than P, as mother’s litigation guardian.
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