When a person is appointed as a guardian for property of an incapable person in Ontario, the Court must approve a management plan that sets out how the guardian will manage the incapable person’s property. The guardian will also be required by the Court to periodically pass accounts – come before the court with records showing how the property was handled. This process is seen as a safeguard to ensure that the guardian is acting pursuant to the approved plan and in the interests of the incapable person.
But what happens if the guardian is failing to manage or mismanaging the incapable’s property and the accounting is not required for some time? Can a concerned party do anything about the guardian’s actions or inaction before the accounting is required?
There are a few options available depending on the seriousness of the mismanagement, including:
- If there are concerns of significant loss of property or a failure to provide necessities of life, the Public Guardian and Trustee’s office (PGT) can be contacted and can conduct its own investigation. Where appropriate, the PGT can step in as the guardian pursuant to section 27 of the Substitute Decisions Act, 1992;
- A person can apply to the Court to seek the removal and replacement of the guardian. In such an application, the guardian would have to answer concerns about their management of the incapable person’s assets. If the Court is satisfied there has been mismanagement, then depending on its seriousness, the Court can replace the guardian and order the guardian to pay to the incapable person any damages suffered as a result of the mismanagement;
- Criminal charges may be laid by the police where appropriate. Charges can include: theft, fraud, criminal breach of trust; failure to provide necessities of life, and criminal negligence. If the guardian is convicted, factors lengthening the sentence include: an act motivated by age or disability; and the abuse of a position of trust or authority.
If you are concerned about how a guardian is handling an incapable person’s property, be sure to review it with your lawyer.