"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Sunday, July 4, 2010

Future Planning for Your Child with Disabilities - Part I

When one starts seriously considering the options available for parents who don't have anyone to succeed them in caring for their child with a disability, it qiuckly becomes obvious that we are talking about some very big shoes to fill.

And since future planning (whether or not you have anyone to succeed you) can cover a range of topics, from guardianship to life insurance, Henson Wills and RDSPs, I have decided to break the subject up into a series of posts.

In this first post, we will look at issues of future planning surrounding the guardianship of an adult child with a disability.


Guardianship
The issue of future planning around the guardianship of an adult child is not one faced solely by the parent who has no one else to succeed them in caring for their child. In fact, if there truly was not one individual available who was willing to act as a successor to a parent, the guardianship issue really becomes moot. The chips will indeed fall where they may. But because the above request was what got me thinking around this issue, I have decided to include this discussion here.

If you have (or plan to) obtain guardianship of your disabled child, you might want to consider what will happen in that regard following your death.

Although, generally speaking, a guardianship will be terminated when the guardian dies, there are certain exceptions to consider:

  1. If co-guardians have been appointed, the guardianship will continue under the surviving guardian.
  2. If the court has appointed an "alternate" guardian, the alternate automatically takes over when the guardian dies and guardianship continues.
This leaves a parent with two possible alternatives in regards to long-term planning and guardianship; namely, to apply either with a co-guardian or an alternate guardian.*

Although co-guardians are often spouses, an older sibling might make a good alternate guardian, provided they are of the age of majority at the time of the original guardianship application. Proceeding in such a manner would give the older sibling additional time to mature while the parent acts as guardian but would then allow the sibling to step in at a later date when the parent dies.

Of course, an alternate guardian need not be a sibling of the incompetent person and a co-guardian need not be a spouse; either could, theoretically, be any other individual with some relationship to the incompetent adult.

If neither a co-guardian or alternate guardian has been appointed, the guardianship will terminate when the guardian dies, leaving the incompetent person without a guardian. And contrary to what some might think, no government agency will automatically step in to fill this void.

Unlike Nova Scotia, the guardianship legislation in Saskatchewan allows a guardian to nominate a successor in their Will and when the guardian dies, the nominee will assume the role of guardian without further court order. Provision is made that the nominee must immediately notify the Public Trustee of the guardian's passing and then apply to court within 6 months for confirmation of their appointment as guardian.

That approach is much preferable to the situation here in Nova Scotia where the legislation does not provide any way for the guardianship of an adult to automatically continue following the death of the guardian. The only available solution would be for another individual to essentially start from scratch and apply to the court to be appointed as guardian just as the parent had.

However, if a parent with guardianship of their adult child was trying to plan ahead for their child's care after their passing, I might just make make the following suggestion. Please understand that I have no solid legal basis for what I am about to propose but I simply can't see any downside to proceeding this way and there's always a possibility it might just be beneficial.

The first thing I would suggest is that the parent find another individual who they feel would make a good guardian to their child in the event of their passing. Approach this individual and obtain their consent and commitment to apply to the court for guardianship of the adult child should the parent pass away.

Then (and this is the part of my proposal that has no support from the Incompetent Persons Act or anywhere else) I would suggest that the guardian include a clause in their Will setting out that on such and such a date they were appointed as guardian of their son or daughter and then identifying the other individual whom, upon their passing, they would wish to have appointed as guardian in their place. Such a clause would also include, in some detail perhaps, why, in their opinion, this named person would make a good guardian for their child.

Now, as I said, in Nova Scotia, there is no legal authority for the guardian of an adult to appoint another guardian in their Will, unlike the situation where a parent can appoint a guardian for their minor child after their passing. And, of course, even in the situation of the minor child, the court would always have the power to over-ride the parent's wishes and appoint another individual as guardian should someone contest the parent's nomination.

But I still can't see any downside to the guardian of the adult including such a provision in their Will, which the person whom they so named could then attach as an exhibit to their affidavit when they apply for guardianship. The named individual would still be required to go through the process of applying for guardianship, just as the initial guardian had, but, although the court is is no way bound to follow the wishes of the previous guardian, it might just be one more factor to tip the scale in favour of the court appointing this other individual as the new guardian. And, if nothing else, you can at least rest a little easier knowing that someone you trust has agreed to apply to be appointed as guardian of your adult child.

Just remember, though, that were a person to go to their lawyer with instructions that their Will be changed to include such a clause, they would no doubt immediately be advised that they had no power to nominate a successor guardian. In which case, the person would respond that yes, they were aware of that fact but thought it might just be worth the extra effort of advising the court of their thoughts on who would make a suitable successor guardian for their child.

The idea being that if the parent/guardian shows that they have given some considerable thought as to whom might make a good guardian for their adult child, the court might just give at least a little weight to their opinion on the matter.

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