Must-have info on Adult Guardianship and Trusteeship

Guardianship

What is a Guardian?

A guardian is an individual named as a guardian in a guardianship order or a person who becomes a guardian by virtue of the Adult Guardianship and Trusteeship Act. A guardian is someone who makes decisions or assists in making decisions for an adult.

What is a Guardianship Order?

A guardianship order is an order of the court appointing a guardian.

A guardianship order only applies to personal matters including, but not limited to, healthcare, employment, where and with whom the adult will live as well in which social activities he/she will participate.

When will a court grant a guardianship order?

A court may grant a guardianship order if it is satisfied that:

• The adult requiring guardianship does not have the capacity to make decisions about the personal matters that are to be referred to in the order;
• Less intrusive and less restrictive alternative measures than the appointment of a guardian have been considered or have been implemented and would not likely be or have not been effective to meet the needs of the adult; and
• It is in the adult’s best interests to make the order.

Who can be a Guardian?

A guardian must:

• be 18 years old or older;
• be someone who consents to being a guardian;
• act in the best interest of the adult; and
• have a close and trusting relationship with the adult, like a close family member (parent, sibling, aunt) or a close friend.

The court may consider other relevant factors where appropriate.

What are the duties and responsibilities of a Guardian?

A guardian shall exercise the guardian’s authority:

• in the represented adult’s best interests,
• diligently,
• in good faith,
• in a way that encourages the represented adult to become, to the extent possible, capable of caring for himself or herself and of making decisions in respect of matters relating to his or her person, and
• in the least intrusive and least restrictive manner that, in the opinion of the guardian, is likely to be effective.

What is required to obtain a Guardianship Order?

There are a number of documents that must be submitted to the Office of the Public Guardian and Trustee before a guardianship order can be granted by the Courts.

These documents include, but may not be limited to the following.

1.) A Capacity Assessment Report

What is a capacity assessment?

A capacity assessment is a formal assessment of an individual’s mental capacity to make decisions about personal care and property.  A capacity assessment is only done in situations where there are legitimate reasons to believe that the adult does not have the ability to make their own decisions. Prerequisite to Capacity Assessment: Before a capacity assessment is done, a doctor must give the adult a check-up (medical assessment) to make sure that their decision-making ability is not affected by a medical condition that is either temporary or reversible.

Who conducts a capacity assessment?

A capacity assessor conducts a capacity assessment and checks to see if the adult understands:

• the facts they should consider when making a decision; and
• what could happen if they choose one option over another

Capacity assessors are members of a health profession who are qualified to evaluate an adult’s ability to make decisions and include all physicians and psychologists.

Contact the Edmonton Law Office and ask for a list of available capacity assessors.

What is the cost of a capacity assessment?

The cost of a capacity assessment can vary. The following are the maximum fees that can be charged for a capacity assessment in Alberta:

• $500 – for either a guardianship, trusteeship or co-decision-making
• $700 – for combined guardianship and trusteeship

2) Application for Appointment of Guardian

3) Affidavit of Applicant – Application for Appointment of Guardian

4) Consent of Proposed Guardian

5) Personal References

6) A Guardianship Plan

What is a Guardianship Plan?

A guardianship plan, submitted in a prescribed form, lists decisions about personal matters of the adult that are expected to be made in the next 5 years. It also outlines the steps a guardian will take to inform and involve the adult in making those listed decisions and how the guardian will ensure the decisions made are in the adult’s best interests.

7) A Criminal Record Check

Guardianship Desk Applications vs. Court Hearings

Desk Application

A “Desk Application” is simply a process where a guardianship order can be obtained without going to court.

If the matter is straightforward and no one is challenging the proposed guardianship arrangement, then desk application is appropriate.

In a desk application, the completed forms are submitted to a review officer at the local Office of the Public Guardian and Trustee, with the required fees. The review officer then reviews the provided documents, prepares a report (after following an internal review procedure) and files the completed report to the court.

If the court is satisfied with the report, an order will be granted.

However, if the court is not satisfied with the information provided and would like to hear from the represented adult, proposed guardians or other individuals, a judge will set a hearing date.

Court Hearing

If someone is opposing the guardianship application, then the application must be filed directly with the court and a hearing must take place. After the application has been filed, notices to all concerned parties must be sent for the hearing date.

When can a Guardianship order be made?

A guardianship order can be made up to twelve (12) months before a person turns eighteen (18) year of age. This ensures that the guardianship order comes into force as soon as the represented adult turns 18 to avoid any complications or problems.

Trusteeship

What is a Trustee?

A trustee is a person named as a trustee in a trusteeship order or a person who becomes a trustee by virtue of the Adult Guardianship and Trusteeship Act.

What is a Trusteeship Order?

A trusteeship order allows someone else, a trustee, to make financial decisions for an adult.

When will a court grant a Trusteeship Order?

A Trusteeship Order can only be granted in respect of an adult who is:

• ordinarily resident in Alberta; or
• not ordinarily resident in Alberta if the order applies to real property of the adult that is located in Alberta.

The Court, in exceptional circumstances, may grant the trusteeship order if the court is satisfied that such an order is appropriate.

Who can be a Trustee?

For a person to be appointed a Trustee, he/she must be:

• an individual who is 18 years of age or older, who consents to act as trustee and who the Court is satisfied
  • will act in the best interests of the adult, and
  • is suitable to be appointed as trustee.

What are the duties and responsibilities of a Trustee?

A Trustee must, among other things:

• Keep the represented adult’s property separate from his/her own;
• Act in the best interest of the represented adult;
• Pay reasonably required expenses for the represented adult’s education, care and support;
• Keep accounts of his/her activities as a trustee;
• Act in good faith; and
• Comply with all the terms of the Trusteeship order and corresponding Trusteeship plan.

 What is required to obtain a Trusteeship Order?

The following documents must be submitted to the Office of the Public Guardian and Trustee before an order can be granted:

1.) Capacity Assessment Report

What is a capacity assessment?

A capacity assessment is a formal assessment of an individual’s mental capacity to make decisions about personal care and property.   A capacity assessment is only done in situations where there are legitimate reasons to believe that the adult does not have the ability to make their own decisions. Prerequisite to Capacity Assessment: Before a capacity assessment is done, a doctor must give the adult a check-up (medical assessment) to make sure that their decision-making ability is not affected by a medical condition that is either temporary or reversible.

Who conducts a capacity assessment?

A capacity assessor conducts a capacity assessment and checks to see if the adult understands:

• the facts they should consider when making a decision; and
• what could happen if they choose one option over another.

Capacity assessors are members of a health profession who are qualified to evaluate an adult’s ability to make decisions and include all physicians and psychologists.  Contact the Edmonton Law Office for a list of available capacity assessors.

What is the cost of a capacity assessment?

The cost of a capacity assessment can vary. The following are the maximum fees that can be charged for a capacity assessment in Alberta:

• $500 – for either a guardianship, trusteeship or co-decision-making; or
• $700 – for combined guardianship and trusteeship

2.) Application for Appointment of Trustee

3.) Affidavit of Applicant – Application for Appointment of Trustee

4.) Consent of Proposed Trustee

5.) Personal References

6.) Trusteeship Plan

A trusteeship plan, in a prescribed form, lists the assets, liabilities, income, and expenses of the adult. It also outlines financial matters that a trustee will deal with, how a trustee will manage them, and specified court authorization matters, among other things.

7.) Inventory

An inventory, in a prescribed form, shows the financial position of the adult as of a specified date. It lists the value of adults’ assets and liabilities, as well as monthly income and expenditures.

8.) A Credit Check

9.) A Criminal Record Check

What must the Court consider before granting a Trusteeship Order?

Before granting a Trusteeship order, a court must find that;

• The represented adult does not have the capacity, based on the report, to make decisions about the financial matters listed in the order;
• Less intrusive and restrictive arrangements or supports are not suitable; and
• The Trusteeship Order is in the best interest of the represented adult.

When can a Trusteeship order be made?

A trusteeship order can be made up to twelve (12) months before a person turns eighteen (18) years of age. This ensures that the trusteeship order comes into force as soon as the represented adult turns 18 to avoid any complications or problems.

A trusteeship order can be granted either through a “Desk Application” or “Court Hearing”.

Trusteeship Desk Applications vs. Court Hearings

Desk Application

If there is no opposition to the trusteeship application and the matter is straightforward, a desk application is appropriate.

In a desk application, the required documents are submitted to a review officer of the local Office of Public Guardian and Trustee. The review officer then reviews the documents and submits a report to the court. A court will grant the order if there are no further concerns and there is no need to hear from either the represented adult, proposed trustee or some other concerned individuals.

Court Hearing

If, however, someone is contesting the trusteeship application, then a court hearing must take place. All the required documents are to be filed with the court directly and a hearing is scheduled. Proper notices of the hearing are to be sent to all concerned parties.

Disclaimer: All the information provided on this page is published in good faith and for general information purposes only. Edmonton Law Office does not make any warranties about the completeness, reliability, and accuracy of this information. Information provided utilizes public resources of the Office of the Public Guardian and Trustee (OPGT) and the Government of Alberta, as well as a summary of legislation and information from the Adult Guardianship and Trusteeship Regulation, Alta Reg 219/2009. For more information, please contact the Edmonton Law Office, and our knowledgeable lawyers will be happy to assist you.