Does the adult guardianship order allow the guardian to act as executor?

A reader wrote to me to ask why the guardianship order that was put into place while her mother was alive does not allow anyone to deal with her mother's estate. I find it upsetting that so many people appointed under adult guardianship laws believe themselves to have the authority to give away or sell the person's assets. Even though guardianship orders clearly state what the guardian can do, people still manage to add in all kinds of other powers that are unlawful.

In this case, it sounds as if everyone was acting with the best of intentions and simply didn't understand the law or the legal documents. Here is her question, followed by my response:

"My mother suffered a massive stroke and dementia was the result. Our family consulted a lawyer and legal guardianship was given to my sister. This guardianship included mom’s health care as well as managing her finances and disposing of her assets. When we discussed what we needed with the lawyer, he was to ensure that the guardianship would extend beyond mom’s death as she did not have the mental capacity to prepare a will. Well, mom is gone now and there is no will. The bank will not recognize the Guardianship and has closed mom’s bank account and set up an Estate account. My sister no longer has access to the account. How do we deal with the account?"

An adult guardianship is set up to allow someone to make decisions on behalf of a person who can no longer do that for herself, and it appears that the guardianship functioned properly while your mother was alive.

I would like to say though that a guardianship order is not about, as  you say "disposing of assets" but is about the running of financial affairs in a way that best suits the needs of the person who is being looked after. No assets should be given away to anyone. Nor should they be sold unless this is the best way to look after the dependent person, and the money is invested for the dependent person. A guardianship is not a will and does not allow a person to act as an executor. I certainly hope that your sister held onto all of your mother's assets while your mother was alive, as she did not have a legal right to dispose of them.

It isn't possible to create a guardianship that would extend beyond a person's death. The bank is correct in refusing to recognize the guardianship, as it expired as soon as your mother passed away. Your sister doesn't have access to the account because she is neither an executor nor a court-appointed administrator.

The reason for this is that you can't write a will for someone else. A will is recognized as being a unique combination of wishes, intentions, and knowledge that nobody else could possibly have other than the person whose will it is. Our laws in Canada say that when a person dies without having made a valid will, nobody else can decide what the will would have said. Even a judge in a courtroom will not make up a will for someone else.

Where someone has died leaving no valid will, her estate must be divided up according to the intestacy laws of your province or territory. Normally this would mean that someone has to be appointed by the court as an estate administrator. That could be your sister or someone else. If the amount in the estate is small and consists only of a bank account, the bank might be willing to proceed by way of having all beneficiaries sign an indemnity rather than go through the expense of getting Letters of Administration from the courts.