J. 2003 SKQB 61 Q.B.G. A.D. 2002 No. 2305 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON RE APPLICATION PURSUANT TO THE ADULT GUARDIANSHIP AND CO-DECISION-MAKING ACT, S.S. 2000, c. A-5.3, AS AMENDED. D.J. Kendall for the applicants, Joanne Marie Schappert and Thomas Mitchell Sotnikow L.J. Chomyn for the respondent, the Public Trustee FIAT LAING J. February 6, 2003 [1] This application by two siblings to act as personal decision-maker and property guardian for their 68-year old mother is opposed by the Public Trustee insofar as they request they be appointed property guardians without the necessity of filing a bond. This is one of number of similarly contested cases by the Public Trustee since the new Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, was proclaimed on July 15, 2001 (hereinafter referred to as the “Act”). [2] Under the previous legislation, The Dependent Adults Act, S.S. 1989-90, c. D-25.1, s. 27, stated in part: 27(1) Unless otherwise ordered by the court, the property guardian shall give security in any amount that the court may direct and with those sureties that the judge may approve, for: (a) duly accounting once in every year, or more often if required by the court; and (b) filing the inventory required pursuant to section 26. (2) The property guardian shall: (a) cause the security required by subsection (1) to be taken by bond in the name of the dependent adult; and (b) file the security mentioned in clause (a) in the office of the local registrar. (3) On the application by the property guardian or any person having, in the opinion of the court, sufficient interest, the court may reduce or increase the amount of security to be given by the property guardian. Under the foregoing legislation the public trustee was not served with notices of application for property guardianship and did not intervene in such applications. The practice under the foregoing legislation for when bond was required was very much ad hoc. If the applicant was from out of the Province, or was not beneficiary under the dependent adult’s will, or if there was opposition within the family to the appointment, bonds were usually required. However, in the writer’s experience, where all of the potential beneficiaries under the will consented to the appointment without bond, the practice was not to require bond. [3] The provision with respect to the requirement of bond under the new Act is contained in s. 55 which states as follows: 55(1) person, other than the public trustee, who is appointed property co-decision-maker or property guardian shall file bond, in the prescribed form, with the local registrar of the court, undertaking to properly act as property co-decision-maker or property guardian for the adult, with any sureties that the court may require. (2) Unless the court directs otherwise, the bond required by this section is to be in an amount that is equal to or greater than the sworn value of the adult’s estate. (3) The court may direct that more than one bond be given in order to limit the liability of surety to an amount that the court considers reasonable. (4) The court may dispense with the filing of bond pursuant to subsection (1): (a) where the value of the estate does not exceed prescribed amount; (b) where the nearest relatives and public trustee consent in writing; or (c) in any other situation the court considers appropriate. From the foregoing section, it will be observed: (1) Unlike the previous legislation, the requirement for bond is mandatory as indicated by the use of the word “shall”, unless an applicant can qualify for dispensation of the necessity of bond under s. 55(4). (2) Under s. 55(4) the prescribed amount by regulation in s. 55(4)(a) is $10,000.00. (3) Under s. 55(4)(b), it is no longer adequate for the nearest relatives to consent to the appointment of property guardian. Unless the public trustee also consents this is not basis for dispensing with bond. (4) The only discretion provided to the court is in s. 55(4)(c) where the court may dispense with bond “in any other situation the court considers appropriate”. [4] Reading the section as whole, and bearing in mind both its purpose, its context, and its historical evolution, the word “appropriate” means suitable or appropriate for the end in view, which is to ensure the adult’s estate remains intact during the guardianship, or can be restored in the event it does not. [5] The arguments advanced by applicants generally and these applicants in opposition to the requirement for bond are three-fold: (1) commercial bond is expensive. The court has heard submissions that some bonding companies are requiring five-year premium payable in advance on the basis the risk is too great for one-year premium. (2) In many cases the proposed applicants do not have adequate assets which equal or exceed the value of the estate to be administered. In addition, privacy concerns are raised about the necessity of having to file financial statement on public record in support of the suretyship. further point is made that the majority of applicants are siblings, who are mostly married, and own whatever property they own jointly with their spouse. In most cases the most significant asset is the residence or the home quarter section, which is exempt under The Exemptions Act, R.S.S. 1978, c. E-14, of the Province, and normally would not be accepted as security for bond. (3) The court has the power under s. 47(1)(a) to place any limitations or conditions on the guardianship that it considers appropriate, and may also require the property guardian to have the appointment reviewed within specified period of time. In addition, pursuant to s. 54 there is requirement that the guardian provide an annual accounting to the court and to the public trustee, which the public trustee may investigate to ensure the accuracy of the same. The position is that the court should impose more strict conditions where the applicant is seeking to be appointed without the necessity of bond. [6] The position of the Public Trustee is that its role is to protect the estate of the subject adult, and to ensure that the money in the estate is always available for the adult’s ongoing care. The Public Trustee states there have been enough defalcations by previously appointed property guardians, which is why it was given larger role to play in the new legislation (powers of the public trustee contained in s. 37) and why the discretion of the court to appoint property guardian without the necessity of bond was very much restricted in the new legislation. [7] One answer to the foregoing arguments advanced by applicants, is to request the public trustee to become the property guardian pursuant to s. 30(b). The fees charged by the public trustee are set out in Regulation to The Public Guardian and Trustee Act, R.S.S. 1978, c. P-36.3, in s. 16. While there is cost associated with involving the public trustee as property guardian, it should be pointed out that it is not uncommon pursuant to s. 51 of the Act for the court to be requested to set fee for service to be paid from time to time to the property guardian out of the estate of the adult. [8] What is apparent to me based on the arguments advanced in this matter and other recent files, is that the public trustee should be consulted in advance of the court application being served and filed as to whether there is any common ground on the type of surety that would be acceptable, including the financial disclosure required to support the same, or to determine if in the public trustee’s opinion it is appropriate to dispense with bond in the circumstances with the result the public trustee is prepared to consent to the application. Consulting with the public trustee in advance will certainly eliminate significant costs for the applicants in having to litigate every application with the public trustee. If the public trustee is not able to accommodate the proposal of the applicants, then the court application may be brought. Whether prior consultation with the public trustee takes place or not, the onus is on person making an application for property guardianship without the necessity of bond to persuade the court that it is appropriate, bearing in mind the object of the legislation which is to ensure that the adult’s estate will not be dissipated during the guardianship, or if it is, that it may be restored. [9] With respect to the present application, the two applicants are two of six siblings of the adult, Mrs. Sotnikow, who is 68-years old and who suffers from what one doctor describes as severe Alzheimer’s disease. The other doctor states her “decision making ability has deteriorated to the point where she can no longer follow simple instructions”, and her “decision making ability will never improve”. Mrs. Sotnikow is resident in private special care home in Saskatoon. The application does not indicate the cost of the monthly care. Mrs. Sotnikow’s monthly income is $1,115.17 made up of an Old Age Security payment of $740.65 and Canada Pension Plan payment of $374.52. There is no estimate of life expectancy included in the application. The sworn value of Mrs. Sotnikow’s estate is $124,684.41 made up of approximately of $36,500.00 in liquid assets, and her house which is valued at $85,000.00. No doubt it would be reasonable to sell the house at some point in time. [10] One of the applicants, Ms. Schappert, has been administering the affairs of her mother under power of attorney dated February 27, 1998. Mrs. Sotnikow’s will divides her estate equally amongst her six children, and the four children who are not applicants consent to the application without a necessity of a bond. [11] On the foregoing facts, am not able to conclude this is an appropriate case to dispense with bond. This conclusion is not reflection on the integrity of the applicants which have no reason to doubt. The fact is this is a routine application by siblings, who are most usually the applicants, and to consider this an appropriate case to dispense with a bond would be to largely negate the mandatory requirement for the filing of a bond contained in s. 55(1). Almost every application would so qualify, because in most cases the nearest relatives always consent. [12] The application to be appointed personal decision-makers is in order, and an order may issue with the authorities identified in the draft order submitted. [13] With respect to the application for property guardianship no order is made. Leave is granted to the applicants to supplement the existing material should they see fit to do so.
FIAT. An application by two siblings to act as personal decision makers and property guardians for their 68 year old mother, who suffers from Alzheimer's. Although their four siblings consented, the Public Trustee opposed their appointment as property guardians without a bond. This is one of a number of cases similarly contested by the Public Trustee since the Adult Guardianship and Co-Decision-Making Act was proclaimed July 15, 2001. Under the previous Dependent Adults Act, the Public Trustee was not served with notices of and did not intervene in applications for property guardianship and the practice for when a bond was required was ad hoc. The prescribed amount by regulation is $10,000. Arguments advanced by applicants generally is that a bond is expensive; in many cases the proposed applicants do not have adequate assets, which equal or exceed the value of the estate; the court has the power under the Adult Guardianship and Co-Decision-Making Act s.47(1)(a) to place any limitations or conditions on the guardianship it considers appropriate. HELD: The application to be appointed personal decision makers was granted. No order was made with respect to the application for property guardianship. The requirement for a bond is mandatory under the new Act as indicated by the use of the word 'shall' unless an applicant can qualify for dispensation under s.55(4). Under s.55(4)(b), it is no longer adequate for the nearest relatives to consent to the appointment. The only discretion is in s.55(4)(c) where the court may dispense with a bond in any other situation the court considers appropriate. Reading the section as a whole and bearing in mind both its purpose, context and historical evolution, the word 'appropriate' means suitable or appropriate for the end in view, which is to ensure the adult's estate remains intact during the guardianship, or can be restored in the event it does not. To consider this an appropriate case to dispense with a bond would be to largely negate the mandatory requirement for the filing of a bond contained in s.55(1).