There is a curious quirk in the Substitute Decisions Act: while the Act explicitly permits a guardian of property appointed under a Power of Attorney for Property to take compensation for their services,1 there is no equivalent provision permitting Guardians of the Person appointed under a Power of Attorney for Personal Care to take compensation. An obvious question therefore arises: are guardians of the person entitled to take compensation for their services? And if so, how much?
The Law on Taking Compensation as a Guardian of the Person
Unlike compensation awarded to a guardian of property, compensation awarded for work as an attorney for personal care is not provided for in any statute.2 Compensation for attorneys for personal care is afforded instead through case law.
In Brown, Re, Justice McDermid recognized that attorneys for personal care were not statutorily barred from taking compensation. He ruled:
“The reasonableness of the claim for compensation will be a matter to be determined by the court in each case, bearing in mind the need for the services, the nature of the services provided, the qualifications of the person providing the services, the value of such services and the period over which the services were furnished. This is not meant to be an exhaustive list but merely illustrative of factors that will have to be considered, depending upon the context in question.”3
In Kiomall v. Kiomall, another leading case for personal care compensation, Justice Brown states:
“…[T]he reasonableness of the amount of compensation awarded to a guardian of the person must be assessed in the context of the specific financial circumstances of the incapable person. The amount awarded must not only be reasonable in relation to the services performed, it must be proportional to the means of the incapable person. Its payment should not pose a risk to the overall financial affairs of the incapable person.”4
As such, when fixing the compensation awarded to an attorney for personal care, the court will consider both the effort expended by the attorney for care and the means of the incapable person.
For example, in Kiomall, a brother, Raymond, sought compensation for acting as his brother Jason’s guardian of the person. Raymond sought over $60,000 in compensation, which would have left Jason with only $19,000. Justice Brown acknowledged the value and high quality of Raymond’s services, but held that the compensation should not financially overburden the incapable person. He fixed compensation at $14,311, or $3,575 for each of Raymond’s four years of work.5
Because the considerations for determining compensation to guardians of the person depend so heavily on a subjective assessment of care quality and the means of the grantor, compensation can vary widely. Considerations include quality of care, length of time serving as attorney for personal care, means of the grantor, diligence in record keeping, and relationship to the grantor.
In Childs v. Childs, for example, an attorney for personal care who also served as the grantor’s personal caregiver was awarded only $500 per month, plus room and board, because the attorney for personal care was the daughter of the grantor and was not professionally sophisticated in her role.6 Conversely, in Cheney v. Byrne, an attorney for personal care was awarded compensation of $15,000, or about $150 per hour, largely due to the quality of care and meticulous record keeping performed by the attorneys for personal care.7
Comparison to Caregiving Services
Compensation is clearly awardable for work as an attorney for personal care. But what about compensation for personal caregivers: non-professional workers, often friends or family of the grantor, who provide essential care services to grantors who are not able to do such work themselves? Are caregivers entitled to compensation?
Like compensation for an attorney for personal care services, compensation for work provided as a caregiver (assuming the caregiver is a family member or close friend, and not a contracted professional) is not fixed in any statute, but may be awarded by the court. The court will award compensation for services that meaningfully improved the life of the incapable person, or caused undue loss or suffering upon the caregiver. However, it will do so at a fraction of the market rate for professional caregiving services, as it expects that family members will care for each other for little to no cost.
Childs v. Childs, mentioned above, is a leading case regarding compensation for family caregiving services. Like compensation afforded to attorneys for care, the essential consideration is reasonableness in light of the work performed and means of the incapable person. However, Justice Tranmer placed additional constraints on the amount to be awarded for caregiving services rendered by a child to their parent – such care should be provided without any expectation of payment, unless the child must make a significant sacrifice (such as giving up a career) to provide that care.8 Compensation must also be in the best interests of the incapable person.9
Proving that a caregiver meaningfully improved the quality of life of the deceased is straightforward. Actions performed by the caregiver that would allow the grantor to retain some autonomy or dignity are considered meaningful improvements, especially if they are done without the expectation of compensation.10 Evidence that the caregiver helped the deceased live at home, or even that he picked up groceries so that she would have the energy to spend time with her family, would strongly support a claim for compensation.
To prove that a caregiver suffered loss in carrying out their duties, evidence should be adduced showing that the caregiver gave up substantial opportunities in other areas to care for the incapable person. Justice Tranmer cites “[leaving] a job” or “[leaving] a happy established life in England” as hypothetical sacrifices that might trigger this consideration.11 If the caregiver gave up real employment opportunities or regularly forsook experiences with their own family to care for the incapable person, that would support a claim for compensation.
There is ample case law supporting a claim for compensation by attorneys for personal care and caregivers. The key consideration courts use to determine compensation is reasonableness.
I refer the reader to my colleague’s blog on this matter.12 The blog notes that the reduced amount of compensation awarded in the Child’s case was likely connected to the remainder of the daughter Caroline’s evidence. Caroline provided evidence that she cared for her mother without any expectation of compensation and was not able to lead any evidence that she had made significant sacrifices to care for her mother. Justice Tranmer commented that a child should not be paid to care for an ailing mother, as the mother was not compensated for raising her children.
This idea that children owe a debt to their parents and should not charge for providing them care reflects a disposition of a number of judges. It places an additional hurdle to those who seek such compensation.
- Section 40(1) of the SDA. ↵
- See Legal Memo – Feb 1, 2022 at 6. ↵
- Brown, Re, 1999 CarswellOnt 4628 at para 4(h). ↵
- Kiomall v. Kiomall, 2009 CanLII 20349 (ON SC) at para 11. ↵
- Kiomall v. Kiomall, 2009 CanLII 20349 (ON SC) at para 12. ↵
- Childs v Childs, 2015 ONSC 4036 at para 47. ↵
- Cheney v. Byrne (Litigation Guardian of), 2004 CarswellOnt 2674 at para 151. ↵
- Childs v Childs, 2015 ONSC 4036 at para 36. ↵
- Childs v Childs, 2015 ONSC 4036 at para 40. ↵
- Childs v Childs, 2015 ONSC 4036 at para 32. ↵
- Childs v Childs, 2015 ONSC 4036 at para 36. ↵
- Charles Wagner and Rachel Kwan, “Paying Children to Care for their Parents?” (28 October 2015), online (blog). ↵