Probate &
Estate Settlement,
Guardianship &
Powers of Attorney

Probate is the legal process in Ontario that confirms a Will's validity and grants legal authority to the appointed estate trustee to manage the deceased's estate. Probate is not always required in order to administer an estate. The type of assets in the estate usually determine whether an estate should be probated. At our firm, we prepare and file a probate application with the requisite court. 

 

The application may differ depending on whether the application is done with or without a Will. When the probate is granted, the applicant receives a certificate appointing him or her as the executor of the estate. Depending on the estate's value, the type of certificate may differ between the following:

• Certificate of Appointment of Estate Trustee (CAET): Required for estates valued over $150,000 (or if the estate includes real estate or assets held by financial institutions).

• Small Estate Certificate: An option for estates valued at $150,000 or less, offering a simpler and faster process.

​

Based on the value of the estate, an Estate Administration Tax may be levied. In some cases a bon may be required. We can help with the estate tax calculation and explain how to meet the tax liability, if any, as well as navigate other requirements. 

When individuals who lacks capacity becomes an adult upon reaching the age of majority, their parents or other caregivers need a special court authorization to make financial and healthcare decisions on behalf of the adult individual. Legal guardianship provides the caregiver with the legal right to act on behalf of and make decisions for the benefit of this individual.

 

What is the legal process involved? In Canada, the process of obtaining legal guardianship is complex. For example, it requires 

• Gathering necessary documents, including medical reports, capacity assessment results, and financial information

• Application must be drafted and filed with the appropriate court in your province.

• Contested applications are rare if the individual lacks capacity. However the government authority (i.e., the Public Guardian and Trustee) could dispute the applicant's suitability or the incapacity of the individual. With contested applications, court representation is required. 

 

What are the powers of a legal guardian? We can explain the specific legal powers, responsibilities and limitations associated with being a guardian, which can vary depending on the type of guardianship granted (guardian of person, guardian of property, or both). Those could include:

• Making personal care decisions (e.g., housing, healthcare, daily living)

• Managing financial affairs (e.g., income, expenses, investments)

• Acting in the best interests of the individual with special needs

​

​Who should be a legal guardian? The legal process involves an assessment of whether an applicant is well-suited to take on the role as a legal guardian. A framework needs to be created to appoint a trusted individual (substitute decision-maker) to make decisions on behalf of the person in clearly defined areas, promoting his or her autonomy while providing the necessary support.

A power of attorney (POA) is a legal document that grants another person (your attorney-in-fact) the authority to make decisions on your behalf regarding your finances, property, or personal care if you become incapacitated. We can help with the drafting and structuring services to ensure your POA is tailored to your needs and legally enforceable.

 

A POA can help in the following situations:

• Age-related Incapacity: Planning for potential future situations where you may be unable to manage your affairs due to age or illness.

• Accident or Injury: Ensuring someone you trust can manage your finances or make healthcare decisions if you're in an accident or become seriously ill.

• Travel or Temporary Absence: Granting temporary decision-making authority to someone if you'll be travelling or unavailable for a period.

 

Choosing the Right POA Type:

• There are different types of POAs. Each with varying scopes of authority. 

  • General Power of Attorney: Grants broad authority to your attorney to manage your finances, property, and legal matters.

  • Limited Power of Attorney: Limits the attorney's authority to specific areas, such as managing a particular bank account or making healthcare decisions.

  • Springing Power of Attorney: The POA only takes effect upon the occurrence of a specific event, such as your incapacitation.