Adult Guardianship and Trusteeship
Canada’s population is changing. By 2030, almost one in four of all Canadians will be over the age of 65.
An aging population creates some challenges. Some of the major challenges seniors face are cognitive decline, the onset of dementia, or other medical issues. Some aging seniors do not have the capacity to make important decisions, whether financial or personal. In addition to seniors, many younger individuals who have a mental disability or have suffered a brain injury may also lack capacity to make important personal and/or financial decisions.
Ideally, before an individual loses capacity, they have both a personal directive and power of attorney. Personal directives appoint an individual to make personal decisions on your behalf if you lack capacity to do so. Powers of Attorney can appoint an individual to make financial decisions on your behalf if you lack capacity.
What happens if someone does not have a personal directive or power of attorney, and then loses capacity to make personal and/or financial decisions?
Alberta’s Adult Guardianship and Trusteeship Act (the “AGTA”) sets out the decision-making options available to adults who have lost capacity. This includes guardianship and trusteeship, and also less intrusive measures which will not be covered in this post.
The AGTA defines capacity, in regards to decision making, as:
“the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of:
i) a decision, and,
ii) a failure to make a decision.”
The first step in an application for guardianship and trusteeship is to have a capacity assessor complete a capacity assessment form to determine if the adult has capacity. A “capacity assessor” can be a physician, psychologist, or other health professional designated by the Minister of Alberta Seniors and Community Supports.
WHAT IS GUARDIANSHIP?
Guardianship applies when an adult does not have capacity to make decisions on “personal matters.”
Personal matters related to any issue, except a financial matter, of a Represented Adult. These issues typically include:
- health care;
- permanent or temporary living arrangements;
- with whom they can associate;
- social activities;
- participation in any educational, vocational or other training;
- employment; and,
- any legal proceedings that do not relate primarily to the Represented Adult.
WHO CAN BECOME A GUARDIAN?
You can become a guardian of a Represented Adult if:
- you are over the age of 18,
- you consent to being a guardian, and,
- you have a close and trusting relationship with the adult, such as being a family member or close friend
The Office of the Public Guardian of Alberta and Trustee of Alberta also notes on its website that potential guardians should also have regular contact with the Represented Adult; have a personal concern for the Represented Adult’s well-being; live close to the Adult; and be aware of the Represented Adult’s values and beliefs.
HOW DO YOU BECOME A GUARDIAN and WHAT IS YOUR ROLE?
You can become a guardian by applying to the Court of Queen’s Bench of Alberta. When you become a guardian, you have legal authority to make personal decisions for the Represented Adult.
Our office is happy to assist with the paperwork necessary to complete the application.
As Guardian, you will need to consider the Represented Adult’s values and beliefs when making decisions; keep records of those decisions; make a guardianship plan; and provide consent on behalf of the Represented Adult for medical procedures.
As Guardian you have a fiduciary relationship with the Represented Adult. Because you are a fiduciary, you must act in the utmost best interest of the Represented Adult. You must avoid conflicts of interest.
Trusteeship allows an individual to handle any matter relating to acquiring, disposing, managing or protecting a Represented Adult’s property. This application can be made at the same time as an application for guardianship.
Like a guardian, you are in a fiduciary relationship with the Adult and you must always act in the utmost best interest of the Represented Adult.
You will need to submit an inventory of the Represented Adult’s property, including debts, in your application. You will also need to submit a budget, which shows the Represented Adult’s monthly income and expenses.
To learn more about the application process, please contact one of our lawyers.
Written by Jillian Gamez