In 1999 and 2001 changes were made to the Trustee Act. One of the changes was the abolition of the legal list approach. The legal list approach was replaced by the prudent investor approach. Under this amended legislation “a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments”. A trustee may now invest trust property in any form of property in which a prudent investor might invest; thus, one must act as a prudent person of discretion and intelligence would act in one’s own affairs.
The prudent investor approach provides the trustee with a broader selection of investment choices. The legislation now specifically permits trustees to make certain investments such as in mutual funds and common trust funds. The Trustee Act also lays out the mandatory investment criteria which a trustee is obliged to consider when investing trust property. There are seven criteria in section 27(5) of the Trustees Act:
Substitute Decisions Act
The Substitute Decisions Act governs what may happen when someone is not mentally capable of making certain decisions about their own property or personal care. There are three possible ways for a decision maker to be appointed: a) through a “continuing power of attorney,” b) through “statutory guardianship,” and c) through a guardian of property by the court. The attorney may be given the authority to make any type of decision related to the person’s property that the person could make themselves, except make a will. However, the power of attorney may put conditions on how the property is to be managed. For example, it might say that loans to individuals or certain types of investments cannot be made.
Under section 15(1) of the Substitute Decisions Act, if a certificate is issued under the Mental Health Act certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. The statutory guardian of property will be the Public Guardian and Trustee unless a family member or other authorized person applies to the Public Guardian and Trustee to assume this role. A person who replaces the Public Guardian and Trustee as statutory guardian of property shall, subject to any conditions imposed by the Public Guardian and Trustee or the court, manage the property in accordance with the management plan.
The property management portions of the Act, (sections 31-42) refer to a “guardian of property”. In this section of the Act, the guardian of property can fall under two different standards.
These standards are found in sections 32(7) and (8) of the act:
In addition to the standard of care, a guardian must make required expenditures from an incapable person’s property. The requirements are outlined under Section 37(1) of the Act. The guardian must put the financial needs of the incapable person first and if there are funds left over, the needs of the person’s dependents are the next priority. After that, if there is money still available, it may be spent to satisfy the person’s other legal obligations. When making these latter required expenditures, the guardian must also adhere to the guiding principles under Section 37(2). Optional expenditures such as gifts, loans and charitable donations are allowed under the Act. The guiding principles for how money may be spent are under section 37(4).
In doing all of this, guardians must keep accounts of all transactions
If you cannot easily locate a phone number for your insurance company, contact your insurance broker. They will put you in contact with the appropriate person to report your claim.Read Article
The recent case of Clark v. Kwasney decided by Mr. Justice Reid here in Hamilton further emphasizes the difficulty of establishing “squatters’ rights”. Counsel (Bordin) was unable to convince their clients to settle and therefore the matter proceeded in an expeditious manner to a hearing. The result was a split decision. The fenced area was lost and the unfenced area remained as per the deeds.Read Article
The loss of the interdependent relationship can best be described as the loss of opportunity to form a permanent interdependent relationship with another individual whether that be through marriage or common law co-habitation. The main component to the loss of an interdependent relationship is the loss of financial benefits from shared family income.Read Article
A Power of Attorney for Property may save substantial time and money in the event of incapacity or an extended time away from home and is relatively inexpensive. The word Attorney in this context does not mean lawyer. A Power of Attorney for Property is a simple written document that allows someone else financial management of some or all of your property while you are alive. It can become effective now and continuously, for a limited time, or only in the event of incapacity. It can be limited to dealing with all or only certain assets of yours.Read Article
Particularly with the advent of no-fault insurance schemes, more and more people are finding themselves embroiled in litigation with their insurance companies. Whether an insured is bringing an action against their insurer for failing to pay accident benefits, disability benefits, life insurance benefits or property damage claims, a common allegation in any Statement of Claim is that the insurer breached its duty to act in good faith.Read Article
In McIntyre v. Grigg et al (2006) 83 O.R. (3d), 161, the Court of Appeal, for the first time, considered the issue of whether punitive damages were available in the context of a motor vehicle accident claim. I had the privilege of arguing this appeal after my partner David Smye obtained a very favourable verdict from a Hamilton jury. While the majority in the Court of Appeal upheld the jury’s award for punitive damages, the quantum of the award was reduced substantially.Read Article