Civil Procedure Rules of Nova Scotia  
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Part 15 - Other Kinds of Proceedings

Rule 71 - Guardianship

Scope of Rule 71
71.01 (1) A person may seek any of the following, in accordance with this Rule:
   
(a)
appointment of a guardian under the Guardianship Act for a child;
   
(b)
appointment of a guardian under the Incompetent Persons Act for a person who is not capable of managing their affairs;
   
(c)
disposal of property owned by a person who is not capable of managing their affairs;
   
(d)
approval of a contract on behalf of a child without a guardian.
  (2) A person becomes a litigation guardian in accordance with Rule 36 - Representative Party, and is not appointed under this Rule.
  (3) A trustee appointed under Rule 36.14, of Rule 36 - Representative Party, may also be appointed guardian in accordance with this Rule.
       
Application
71.02   A person who seeks the appointment of a guardian under the Guardianship Act or the Incompetent Persons Act may file a notice of application in chambers under Rule 5 - Application.
       
Notice to person who is subject of application
71.03 (1) A child must be notified of an application under the Guardianship Act, in accordance with Rule 31 - Notice.
  (2) A child who is twelve years of age or older must be informed about each step in the proceeding, unless a judge directs otherwise.
  (3) A notice under subsection 3(2) of the Incompetent Persons Act may be given in accordance with the provisions for giving notice in Rule 31 - Notice.
  (4) A person who is notified of an application under the Incompetent Persons Act, who is found to be incapable of taking care of themselves, and whose condition does not materially improve after the finding is made need not be given further notice in the proceeding.
  (5) In particular, a person referred to in Rule 71.04(2) need not be notified of a motion for power to sell property, replace the guardian, or approve the guardian’s accounts.
       
Notice to other persons
71.04 (1) A copy of a notice of application to appoint a guardian for a child must be delivered to each of the following persons, unless a judge directs otherwise:
   
(a)
each parent of the child other than the applicant or, if the child has no parent who is not an applicant, the child’s next of kin other than the applicant;
   
(b)
a person, other than the applicant, who has custody of the child under an agreement or order.
  (2) A copy of a notice of application to appoint a guardian for a person who is not capable of managing their affairs must be delivered to each of the following persons, unless a judge directs otherwise:
   
(a)
a parent, spouse, and adult child of the person other than the applicant, or, if the person has no living parent, no spouse, or adult child other than the applicant, the person’s next of kin other than the applicant;
   
(b)
if the person resides in a place where care is provided, the manager of the residence.
  (3) A judge may direct that another person be notified of an application to appoint a guardian.
  (4) The parent of a child, and a person who has custody of a child, for whom a guardian is sought to be appointed must be notified of the proceeding in accordance with Rule 31 - Notice.
  (5) Despite Rule 31 - Notice, each other person who must be notified of an application to appoint a guardian may, unless a judge directs otherwise, be notified by delivery, by mail or hand, of a certified copy of the notice of application to the person’s last known address.
       
Affidavits
71.05 (1) The applicant must file an applicant’s affidavit, an affidavit proving notice, and a draft order no less than ten days before the day the application is to be heard.
  (2) Affidavit evidence in support of an application for the appointment of a guardian of a child must include all of the following, unless a judge directs otherwise:
   
(a)
proof of the child’s date of birth by birth certificate, or by other means if a birth certificate cannot be obtained;
   
(b)
if the child is over twelve years of age but less than sixteen, the child’s position on the proposed appointment;
   
(c)
if the child is sixteen years of age or more, whether the child consents to the proposed appointment and, if not, the reasons for going against the child’s wishes.
  (3) An application for an order under the Incompetent Persons Act must also be supported by affidavits of two medical practitioners giving evidence of the present state of health of the person alleged to be incapable of managing their affairs.
  (4) An applicant may make an ex parte motion for an order giving a medical practitioner permission to include relevant confidential information in an affidavit.
       
Order appointing guardian
71.06   The order appointing a guardian must provide for all of the following:
   
(a)
the appointment of the guardian;
   
(b)
the filing of a bond, unless the guardian is the Public Trustee, in compliance with the Guardianship Act or the Incompetent Persons Act;
   
(c)
the amount of the bond, calculated at one and a quarter times the value of the property to be administered by the guardian, excluding real property;
   
(d)
a requirement for the bond to be filed no later than thirty days after the date of the order, or such other time the applicant seeks to be set by the judge who hears the application;
   
(e)
a requirement that the guardian file an inventory of all property of the person who is the subject of the order and a deadline for doing so;
   
(f)
a requirement for the guardian to account as directed by a judge;
   
(g)
a requirement for the guardian of a child to account to the child, and file the accounts, by a deadline after the child’s nineteenth birthday;
   
(h)
a requirement that the guardian produce a copy of the inventory or accounting to an interested person who demands the production;
   
(i)
termination of the guardianship of a child on the child’s nineteenth birthday;
   
(j)
the powers and other obligations of the guardian.
       
Bond
71.07 (1) The bond may be executed by a recognized surety company, or the applicant.
  (2) An applicant’s bond must be supported by two sureties and affidavits of justification showing that the sureties have assets, worth at least the amount of the bond, available for realization on a judgment.
       
Inventory
71.08   The inventory must include a concise description of each item of property, a concise description of the basis on which it was valued, the valuation amount, and a total.
       
Material improvement in medical condition
71.09 (1) A guardian who is appointed under the Incompetent Persons Act and who becomes aware that the condition of the person who is the subject of the guardianship materially improves, must inform the person of the provisions of Section 14 of that Act.
  (2) A person who is the subject of an order under the Incompetent Persons Act and who wishes to petition for an order removing the guardian under Section 14 may make the petition by filing a notice of motion in the proceeding under which the guardian is appointed.
       
Motion or application for disposition of property
71.10   A guardian may make a motion for an order for the sale, mortgage, lease, or other disposition of property in the proceeding in which the guardian is appointed.
       
Disposition of proceeds
71.11 (1) A judge who grants an order for disposition of property, such as a license to sell real property, of a child or a person who is not capable of managing their affairs may provide for payment of the proceeds in any of the following ways:
   
(a)
to pay the expenses of the motion or application, and of the sale, to a maximum amount approved in the order or an amount to be approved by a judge;
   
(b)
to cover an expense paid, or to be incurred, in the interest of the child or the person who is not capable of managing their affairs;
   
(c)
to pay the balance into a trust.
  (2) An order for disposition of property that provides for a payment into trust must also provide the terms of the trust and include all of the following kinds of terms:
   
(a)
appointment of the guardian, or some other fit person, as trustee;
   
(b)
payment of the trustee’s fees and expenses;
   
(c)
payments for the benefit of the child or person who is not capable of managing their affairs, including a specific description of the kinds of payments that may be made;
   
(d)
safe investment of trust funds, or provisions for the safekeeping of other property;
   
(e)
variation of the trust on motion of an interested person;
   
(f)
termination of the trust and distribution to a child who turns nineteen, or a person who becomes capable of managing their affairs and whose guardian is discharged;
   
(g)
extension to the trust of the accounting requirements in the order appointing the guardian;
   
(h)
the filing of a further bond, if the bond filed as a result of the order appointing the guardian is inadequate or a person other than the guardian is appointed trustee.
  (3) The person who makes the motion for disposal of property must obtain approval of the payment of the expenses of the motion or application, and the sale, in either of the following ways:
   
(a)
approval of a maximum amount for the expenses of the sale except counsel’s fees and disbursements and a separate maximum amount for counsel’s fees and disbursements;
   
(b)
if no maximum amount is approved or it is exceeded, approval of the actual payments by a judge after the sale.
       
Report on disposal
71.12   A party who obtains an order for disposition of property must file a report on the sale no more than twenty-five days after the day it is completed.
       
Approval of contract to be made by child
71.13 (1) A child, or a person who has custody of a child, may make an application, under Rule 5 - Application, for an order approving a contract to be made by the child.
  (2) A child who applies for approval of a contract must join as respondents the other party to the proposed contract, and, unless the person is the child’s litigation guardian, each person who has custody of the child.
  (3) A person who has custody of a child, and applies for approval of a contract, must join as respondents the other party to the proposed contract, the child, and any other person who has custody of the child.
       

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