We recommend that our clients prepare their Personal Directives and Enduring Power of Attorneys while they can. More often, preparing for our eventual loss of mental capacity or physical inability to communicate is something a lot of us do not consider a priority. Hence, more common than not, many of us may find ourselves in a situation where one of our loved ones or friends has appointed no one to make personal or financial decisions on their behalf at a certain point in time when those personal or financial decisions become crucial.
Fortunately, here in Alberta, we have the Adult Guardianship and Trusteeship Act (AGTA) which came into force on October 30, 2009. This legislation provides several routes to enable Dependent Adults to secure aid in their decision-making. For instance, when adults cease to be able to handle their personal and financial affairs, and they do not have Personal Directives or Enduring Power of Attorneys in place, eligible persons may apply in Court and seek a Guardianship and Trusteeship Order.
How we assist our clients with the Guardianship and Trusteeship process
At Edmonton Law Office, we commit to efficiently supporting our clients at the onset. Below is a preview of the guidelines we follow in the process. This is a glimpse of what our clients can expect in this journey towards obtention of the Order.
- Upon the first call to our office, we ask some intake questions, which allow us to determine the appropriate method of application, whether it will be a straightforward desk application or an application that requires a hearing. Answers to the intake questions further allow us to calculate the probable costs and estimate the timelines;
- We will then book an appointment with the Applicant(s) to plan our next course of action. During this meeting, we will provide our clients with Guardianship and Trusteeship Information forms, as well as discuss the documentation required (discussed below) in preparing the Application Package;
- We will then commence the preparation of the Application and its supporting documents. Once that is completed, we will send the drafts to the Applicant for review and confirmation;
- We will then book their next appointment for the signing of the documents;
- The signed Application Package will then be sent for filing. If it is a straightforward application, it will be filed with the Office of the Public Guardian and Trustee. However, if it is an application that requires a hearing, it will be sent directly to Court; and
- The final step will be to wait for the Guardianship and Trusteeship Order to be granted by Court.
Important terms under this process
- 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 cannot 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 ensure that their decision-making ability is not affected by a medical condition that is either temporary or reversible.
- 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.
- 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.
- 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.
- Desk Application
A “Desk Application” is simply a process where a guardianship or trusteeship order can be obtained without going to Court. If the matter is straightforward and no one is challenging the proposed guardianship or trusteeship arrangement, then a 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 opposes the guardianship or trusteeship application, then the application must be filed directly with the Court, and a hearing must occur. After the application has been filed, notices to all concerned parties must be sent for the hearing date.
Note: An Applicant may apply for Guardianship or Trusteeship only or for both Guardianship and Trusteeship. For simplicity, the next sections below will expound on the topics of Guardianship and Trusteeship separately.
Guardianship
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?
In order to obtain a Guardianship and Trusteeship Order, there are a number of documents that must be submitted to the Office of the Public Guardian and Trustee before the Courts can grant a guardianship order.
These documents include, but may not be limited to the following:
- A Capacity Assessment Report
- Application for Appointment of Guardian
- Affidavit of Applicant – Application for Appointment of Guardian
- Consent of Proposed Guardian
- Personal References
- A Guardianship Plan
- A Criminal Record Check
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.
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.
Trusteeship
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 the 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:
- Capacity Assessment Report
- Application for Appointment of Trustee
- Affidavit of Applicant – Application for Appointment of Trustee
- Consent of Proposed Trustee
- Personal References
- Trusteeship Plan
- Inventory
- A Credit Check
- 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”.
A Guardianship and Trusteeship Lawyer at the Edmonton Law Office can assist with obtaining a Court Order allowing you to ensure your loved ones are safe, protected, and well cared for. Speak with one of our Alberta Trusteeship and Guardianship Lawyers, who can assist with all forms of applications to our courts.
