If a person becomes mentally incapable and has never signed a Power of Attorney for Property and/or Power of Attorney for Personal Care, it may be necessary for someone to make an application to the court to be the incapable person’s guardian of property and/or guardian of the person.
Unfortunately, guardianship applications can become acrimonious where more than one family member vie to be guardian. What is the court’s reaction when the contesting parties are able to come to an agreement and appear to have settled the differences between them? A recent Ontario case, Bosch v. Bosch, illustrates the court’s position that although the parties may appear to have overcome their differences and agreed to a settlement, what remains paramount are the best interests of the incapable person.
The case involved guardianship applications brought by a son. His father had been in a nursing home for some years and the incapable’s wife (mother of the son) had been acting as his guardian of property and attorney for personal care. Initially the son brought an application seeking a court order finding his mother incapable and appointing him as her guardian of property and of the person. In a second application, the son wanted his mother removed as guardian of property and of the person of his father. The son wanted to be appointed in his mother’s place.
During mediation, mother and son (along with a sister) were able to reach a settlement, pending court approval. The family members had agreed that the first application would be dismissed and mother and son would be appointed joint guardians of property and person for the incapable. The judge, however, refused to approve the settlement as he was not satisfied that the proposed guardians had truly settled their differences. The judge commented, “Absent clear evidence of the unalterable willingness of two disputing persons to put their personal differences to one side and to act together only with a view to the best interest of an incapable person, joint guardianship can become a minefield with the incapable person the loser.” This decision makes it clear that the court requires some tangible proof that the proposed guardians can truly get along before taking on the responsibilities of guardianship. Exactly what will satisfy the court remains to be seen.
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Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
