For readability, this article has been spread-out over three web pages. This is page 3. Adult Guardianship: Who Takes Care of Granny? starts at page 1 and continues at page 2. At the bottom of this, page 3, you will find the Reference section where all legal citations for all cases are given.

A bankrupt is not automatically disqualified from acting as a guardian of an adult but it is a matter to be given great attention by the Court.

The fact of spearheading the application to the court for the adult guardianship order does not give the petitioner any precedence. In most cases, as in British Columbia, the Court may appoint "any person" (§6(1)). But this was true at common law. In Re Webb, this exchange is recorded in the old law reports (1846):

"Mr. Walford then stated that the practice of the commissioners was to give a preference in the appointment of the committee to the party who had the carriage of the commission, unless some good reason were shewn to the contrary....

"THE LORD CHANCELLOR: I know of no such rule and I cannot recognize it. It would be a very improper rule if any such existed."

It would be exceptional that more than one person would be appointed committee. As Theobold wrote in 1924:

"It is desirable that there should be only one committee, whether of the estate or person. The appointment of several committees greatly increases expense and does not promote expeditious adminisration."

A conflict of interest between the postulant for committee and the estate of the adult is a real concern.

In Craig v Wilander, the court wrote:

"[A] court may refuse to appoint a property guardian whose interests conflict, or may conflict, with those of the individual unable to manage his or her affairs.  The courts have generally sought to balance the benefits of appointing a particular guardian against any evident conflict of interest.  Courts have also clearly indicated that a conflict of interest will constitute a ground for a removal of a guardian."

Love alwaysBut, as noted in Mental Disability and the Law in Canada:

"No one should automatically be disqualified from consideration as a guardian simply because of a possibility of a conflict of interest.  The court should assess the nature of the conflict and the likelihood of its arising."

Or in Re Demontigny, in which Justice Purvis wrote:

"There are many and varied circumstances where the interests of a guardian and a dependent adult might conflict. In some cases the conflict could be considered as likely to arise. In others the likelihood of conflict, while possible, would best be described as remote.

"I do not believe that the legislature intended to bar the appointment as guardian, partial guardian or trustee of a person, otherwise suitable in all cases, where a conflict is only remotely possible."

It seems that an alleged or existing conflict of interest will turn on its own facts.

In Noel v Noel, the guardianship of Colin was at issue, who had been seriously injured in an automobile accident:

"Here the applicants as Colin's parents wish to personally provide many of the services required to care for Colin. They want to be paid for those services. The parents would be in a conflict of interest and duty if they have to decide how much of Colin's money should be paid to themselves for services rendered. In my view the court should not put the parents in such a conflict of interest and duty.

"The rule is as follows: It is prohibited for ... a trustee to be in a position where the opportunity, and therefore the temptation, exists to prefer his interest over his duty."

The views of the adult expressed before the unsoundness of mind, will be given every consideration of the court but not necessarily be determinative.

A good lawyer, where a client is spending the money to have a will, power of attorney or representation agreement drafted, will suggest a "just in case" designation of a preferred guardian in the appropriate document.

In a 1996 New Brunswick case, Re Carr, Justice Glazier wrote:

"If the mentally incompetent person has expressed a preference for the appointment of a particular person, that preference should be taken into consideration by the court and should be respected so long as it is rationale and may reasonably be viewed as in his best interests."

In Re Hoskins, Justice McEwan granted committeeship to the public trustee but stating:

"Where there is an obvious preference by the patient for someone specific, and there is no other impediment to the appointment of that person, I think the court should respect that choice."

Be alive to the provisions of the dependent adult statute in your jurisdiction. For example, in British Columbia, the relevant statute (called Patients Property Act) contains this at §9:

"[I]f there is presented to the court a nomination in writing of a committee by the patient, made and signed by the patient at a time when the patient was of full age and of sound and disposing mind, and executed in accordance with the requirements for the making of a will ... the nominee must be appointed committee unless there is good and sufficient reason for refusing the appointment."

  Even while incapable of managing his affairs or his person, there may be enough coming from a dependent adult to allow a court to glean a rationale preference. In Re Cochrane, Justice Disbery wrote:

"It must be borne in mind that a lunatic or mentally infirm person may be capable of managing himself but incapable of managing his affairs. In other cases the converse may be true. So also a mentally infirm person while incapable of managing his affairs may still be capable to instruct counsel and express his wishes with respect to a proposed committeeship."

Or this from Justice Hughes of the New Brunswick Court of Appeal in Re West:

"... notwithstanding Mr. West may be incapable of conducting his business, it remains his and that his wishes should be respected as long as they are rational and may reasonably be viewed as in his best interest."

REFERENCES: