If you are a power of attorney or a court-appointed legal guardian for an elderly parent, you are governed by the Substitute Decisions Act. This legislation sets out the law for guardians when managing property and when looking after the personal care of an incapable person. The Act dictates that the powers and duties of a guardian, both of property and the person, shall be exercised and performed diligently and in good faith.
There are many provisions addressing property management. A guardian has the power to perform, on the incapable person’s behalf, anything in respect of property that the person could do if capable, except make a will. It is important to note that the guardian acts in a fiduciary capacity and is liable for damages resulting from a breach of the guardian’s duty. The guardian’s duties must be exercised with honesty and integrity for the benefit of the incapable person.
The regulations under the Act provide a formula for compensating a guardian for managing the property. The issue of compensation, however, affects the standard of care that the guardian must meet as a fiduciary of the incapable person. A guardian who does not receive compensation for managing the property shall exercise the degree of care, diligence, and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs. A guardian who receives compensation for managing the property shall exercise the degree of care, diligence, and skill that a person in the business of managing the property of others is required to exercise.
The Act sets out several things that the guardian of property must do as guardian. For example, a guardian shall keep accounts of all transactions involving the property in accordance with the regulations. He or she shall make reasonable efforts to determine whether the incapable person has a will, and if the incapable person has a will, what the provisions of the will are. Knowledge of the will is important because it may affect how the property should be managed until death. The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person and consult with the family and friends from time to time in decision-making.
Where there is no one who is willing to act as the guardian for the elderly parent, the Public Guardian and Trustee may be appointed