Issue link: https://digital.canadianlawyermag.com/i/226536
wills & estates guardianship heaTheR hoGan Whaley Estate Litigation G uardianship proceedings often arise as consequence of personal injury or medical malpractice litigation where the injured party is considered to be a party under disability pursuant to rule 7 of the ontario rules of civil procedure. guardianship proceedings in this context are separate from the claim in respect of the injury. a minor for the purposes of rule 7 is considered to be a person under disability by virtue of minority alone. in the case of minors, a settlement or judgment amount of $10,000.00 or more must be paid to the accountant of the superior court, or to a guardian of property appointed by the court pursuant to the provisions of the children's law reform act. one of the factors for counsel to consider in any claim for a person under disability is an estimate of the legal costs of guardianship. these costs should be factored into any claim and would include expenses such as: the legal fees incurred in bringing the guardianship application before the court at first instance, and thereafter the guardianship costs of any future motions for directions, application upon turning age of majority, for guardian removal/resignation/replacement, amendment to management/guardianship plans, applications to pass accounts, or other related matters authorized by the governing legislation. 10 legal costs and related disbursements are distinct from guardianship fees and compensation. these costs must also be considered in the context of the comprehensive cost associated with guardianship. each guardianship application is unique to the specific facts and circumstances of the person under disability and their proposed guardian(s). the following highlight just a few factors that should be considered in estimating the costs associated with guardianship for the purposes of a plaintiff's claim: • independent counsel – it is advisable that counsel, independent of counsel for the plaintiff/litigation guardian in the injury proceedings, be retained to commence the guardianship application. the minor under disability becomes the subject matter of the guardianship application and is accordingly a respondent. consequently, the child respondent is arguably adverse in interest. • amendments to management/ guardianship plan – changes to the court approved management plan, in the case of a minor, must be brought before the court for approval. • future life changes – changes to guardianship appointments/ plans from time to require court proceedings. • adulthood – when a minor reaches the age of 18, a new guardianship application may need to be brought under the substitute decisions act, 1992. the initial guardianship judgment for that minor should include an order requiring the guardian to arrange for an assessment by a qualified assessor prior to the minor's 18th birthday. • timing – the timing of a guardianship application is often sensitive in that the money from the claim is needed for the person under disability, yet monies cannot be paid out until there is a guardianship appointment following resolution of the claim. • precedent – there is a growing body of case law defining the boundaries in estimating costs and compensation, yet every situation is unique. there are many factors to consider in a guardianship appointment and this synopsis has only touched on a few. guardianship proceedings are specialized and the cross-disciplinary nature of the proceedings emphasizes the need for experienced counsel in each discipline.