How Should a Trustee Protect a Represented Adult’s Interest in Land?

Saul Benary

In the case of D’Silva (Re), 2018 ABQB 603, Llewelyn D’Silva was appointed guardian and trustee over his adult brother, Selwyn D’Silva, in March 2010. Cledwyn D’Silva was made the alternate guardian and trustee over his brother. This was done at the urging of their father, Joseph D’Silva, to provide for Selwyn in case Joseph was ever unable to. At the time, Selwyn lived in Joseph’s house with Joseph. To ensure Llewelyn would be able to deal with the house if he ever had to, Joseph had Llewelyn added on title jointly with Joseph and Selwyn in 2010. 

The need for Llewelyn arose in late 2015 after Joseph was moved to a care home following an accident. Llewelyn stepping in as intended. However, by late 2016 Llewelyn’s relationship with Cledwyn broke down entirely, and Cledwyn applied in November 2016 to replace Llewelyn as the primary guardian and trustee. Among other things, Cledwyn alleged the Transfer of Land into Llewelyn’s name was improper. In response, Llewelyn filed a Declaration of Trust in December 2016 disclaiming any interest in the house before filing his own application in January 2017 to remove Cledwyn as an alternate guardian and trustee.

Regarding the house, the Honourable Justice Hollins agreed with Cledwyn. The way to properly protect a represented adult’s interest in land was not to put the trustee on title. What Joseph and Llewelyn should have done was register the Order that appointed Llewelyn in 2010 against the title of the house. The Adult Guardianship and Trusteeship Act provides for this procedure exactly at subsection 55(3). The Justice ordered this to be done and to remove Llewelyn from title. However, Cledwyn would also be removed as an alternate guardian and trustee.