Inappropriate Guardian Compensation and Breach of Fiduciary Duty
Nadia Osmulski needed a guardian. Her son Joe stepped in as court appointed guardian for property and personal care. Although Joe managed to ensure Nadia was taken care of, he made many decisions which were considered a breach of his fiduciary duty as guardian. While analyzing Joe’s conduct the court in Osmulski Estate v Osmulski Estate (2014 ONSC 6370) took the opportunity to examine the various principles of guardianship:
Caught by Unintended Consequences
Last week we spoke about domestic contracts and will drafting. This week we shift to situations of incapacity – where the spouse with the support obligations becomes incapable. As we know, once an individual becomes incapable of managing their own property, his or her attorney or guardian of property will step in. Section 37 of the Substitute Decisions Act is a useful but not often used tool for the capable spouse to seek support payments from the incapable spouse’s property.
Reaffirming Intentions When Drafting a Will
Those of us involved in estates generally, and certainly those in estate litigation, know that ultimately what we do is record a person’s intention. A person’s intention is what is most important when talking about their estate and the transfer of wealth. We hear it again and again with respect to joint assets – whether they are real estate or bank accounts – intention is what determines how the asset passes and who owns it at the end of the day and, it has now become best practice for drafting lawyers to ask questions about jointly held assets. This has become part of everyday practice.