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Guardianship Weekly – Week 6: Guardianship Accounting – Did you know?

Guardians of property are required to keep accounts pursuant to section 32(6) of the SDA. Guardians for personal care are required to keep records pursuant to section 66(4.1) SDA.

The contents of accounts are prescribed by O Reg 100/96 under the SDA. The format of accounts for the passing of an estate or guardian’s accounts is outlined in Rule 74.17, and is the same format required for estate trustees pursuant to Rule 74.17 except there is no obligation to distinguish between income and capital accounts as a guardianship is not a testamentary accounting. The regulation also prescribes that personal care decisions be recorded, and provides disclosure and retention rules for accounts and records.

Guardians must act in accordance with their management plan and/or guardianship plan, as approved by the court or the PGT. If a guardian must amend a plan because circumstances have changed, an amended management plan or amended guardianship plan may be submitted to the PGT pursuant to its statutory authority in sections 32(11) and 66(16) of the SDA.

The relevant provisions of the SDA, ss 42(1)-(8), identify the circumstances in which a court may order the passing of accounts:

an attorney or grantor may apply to pass attorney accounts; and

a guardian, incapable person, guardian/attorney for personal care, a dependent of the incapable person, the OPGT, the OCL, a judgment creditor, or any other person, with leave of the court, may apply to pass the accounts of the guardian.

The court-appointed guardian of property is a fiduciary pursuant to the SDA.[1]  As such, the guardian of property shall deal with an incapable person’s property in accordance with the regulations, and keep accounts of all transactions involving the incapable person’s property.[2]

It is worth noting that as of January 1, 2016, there are changes to Ontario’s Rules of Civil Procedure concerning the requirements for passing accounts under rule 74. Some of the changes include that where a person who was a guardian or attorney for property of a person under disability has a contingent or vested interest in a deceased’s estate, the attorney or guardian of the disabled person shall be served with:

The estate accounts verified by the affidavit of the estate trustee;

A copy of the Certificate of Appointment of the applicant as estate trustee;

A copy of the latest judgment, if any, of the court relating to the passing of accounts.[3]

If there is no litigation guardian and the PGT has not been authorized to represent the disabled person on a passing of accounts for which the disabled person may have a contingent or vested interest, the court may appoint someone to represent the person on the passing of accounts.[4]

[1]Ibid at s 32(1).

[2]Ibid,, s 32(6).

[3]Rules of Civil Procedure, RSO 1990, c C.43 at r. 74.18 (3.2) (in force as of January 1, 2016).

[4]Ibid, r 74.18(6) (in force as of January 1, 2016).

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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