Do you find you have a loved one, who has lost capacity, is reaching adulthood and who needs help in making decisions? If so, we can help.
Adult Guardianship and Trusteeship Act
In Alberta, the Adult Guardianship and Trusteeship Act (“AGTA”) governs when an adult needs assistance making decisions. The AGTA provides a variety of options that range from having a person provide some help in making decisions to having a person take over the decision-making completely. The options depend on the kinds of decisions being made. There are 2 kinds of decisions covered by the AGTA: “personal matters” and “financial matters.”
A person who is subject of a guardianship order or trusteeship order is called a “Represented Adult”. The person authorized to make personal decisions for a Represented Adult is the “Guardian”. The person authorized to make financial decisions for a Represented Adult is the “Trustee”.
There are various options available under the AGTA to help someone make decisions about personal matters. Personal matters include the following:
- the adult’s health care;
- where, with whom and under what conditions the adult is to live;
- with whom the adult may associate;
- the adult’s participation in social activities;
- the adult’s participation in any educational, vocational or other training;
- the adult’s employment; and
- any legal proceedings that do not relate primarily to financial matters of the adult.
We can work with you to discuss what may be the best option for you and your loved one. This may include a co-decision making order, specific decision making order, temporary guardianship order or a full guardianship order depending on the circumstances.
The AGTA also has options available to help support someone with their decisions about financial matters. A financial matter is any matter relating to the acquisition, disposition, management or protection of property. This includes real property, personal property, bank accounts, money, or investments. The options include a temporary trusteeship order or full trusteeship order if an adult is assessed as incapable (and who have not completed an Enduring Power of Attorney.) A trusteeship order gives another adult the authorization to make financial decisions for someone who does not have capacity.
If you know someone who needs help in making personal or financial decisions because they have a diminished state of mental capacity or have lost their capacity, we would be happy to discuss your options with you.
My incapable 17 year old child will require a Guardian and/or Trustee when he/she turns 18. Do I have to wait until he or she is 18 to apply?
No. An application can be made for an individual up to 12 months before his/her 18th birthday. This way, the order can come into effect immediately upon his/her 18th birthday.
Who can apply?
Usually a family member or a friend applies for guardianship or trusteeship. A Guardian and Trustee must be over the age of 18. It is not necessary to live in Alberta, but the person should be in regular contact with the proposed Represented Adult. For a trusteeship order, a non-resident must provide a bond or other security, unless the Court removes this requirement. The proposed Guardian and Trustee must be willing, able and suitable to act in the best interests of the Represented Adult.
Can there be more than one Guardian or Trustee?
Yes. If more than one person is appointed you will need to address the question of the division of powers between the Guardians or Trustees.
How can I obtain Guardianship or Trusteeship for my loved one?
The decision to grant guardianship or trusteeship is made by the Court. The process can proceed by a desk-top application or an appearance in Court depending on the circumstances. We can help you in the process. Contact a member of our Estate Solutions group for more.
This article is intended to give general information only. We recommend you contact a lawyer for specific legal advice.