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What happens when an adult loses the ability to make personal or financial decisions? If they have previously prepared a personal directive or power of attorney, the agent or attorney can take steps to have the directive or power of attorney invoked. But if the adult loses capacity without having prepared a personal directive or power of attorney, or never had that capacity, due to developmental disabilities, Alberta law allows individuals – typically a family member – to apply to be named as the guardian and/or trustee of the adult.
A guardian is appointed in situations where an adult lacks the ability to make reasonable decisions about personal matters. This includes health care decisions, but could also include decisions about where the adult lives, what work, educational or social activities the adult participates in, the people with whom the adult associates, and any legal proceedings on behalf of the adult that do not relate primarily to the adult’s financial affairs.
A trustee is appointed in situations where an adult lacks the ability to make reasonable decisions about financial matters. This permits the trustee to manage the adult’s financial affairs on their behalf.
A individual may require only a guardian or trustee, or may require both a guardian and a trustee. A guardian or trustee must act only in the best interests of the adult.
For more information regarding the process of applying to be appointed as a guardian or trustee, click here.
For information about what to do if you have concerns about the actions of a guardian or trustee, click here.
If you require a consultation with a lawyer or are ready to retain a lawyer, please complete our intake form by clicking here. A staff member will contact you within one or two days.
The first step is to obtain a capacity assessment for your loved one. A capacity assessment is completed by a healthcare professional. All doctors and psychologists are qualified to complete capacity assessments, but other trained healthcare professionals can be designated as capacity assessors as well. A good starting place for completion of a capacity assessment is to get in touch with the adult’s regular doctor, who can either complete the assessment or refer you to a capacity assessor to complete the assessment. If the capacity assessor determines that your loved one has lost capacity, they complete a Capacity Assessment Report that you can provide to a lawyer to assist you in preparing the necessary application.
Capacity is the ability to understand the facts that are important to a decision, and to understand the potential consequences of that decision. If an adult understands and appreciates the facts that are important to the decision and the consequences of the decision they are making, they likely have capacity, even if they are making decisions that appear to be harmful to themselves. It is possible that an adult may have capacity to make some decisions, but not other ones. For example, an adult may struggle to make health care decisions, but still have the ability to make decisions about their finances or living arrangements.
You will need to prepare an application to be appointed as a guardian, trustee, or both. You will need information about the adult, their close family members and current living situation. You will also need to develop a plan for how you will make decisions on behalf of the adult and provide information about decisions which you anticipate needing to make on behalf of the adult in the near future. If you are applying to be appointed as trustee, you will also require information about the adult’s financial affairs, including their assets, expenses and income.
You will also need to give consent for a background check to be completed. This includes a criminal record check, reference check, and, if you are applying to be appointed as a trustee, a credit check.
In the usual course, once the application is submitted to the Office of the Public Guardian and Trustee for review by a review officer (which includes the completion of the background check referred to above), it takes between 3-6 months for a desk application to be completed. In urgent situations, it is possible to have a temporary guardian or trustee appointed for a period of 90 days. The temporary trustee can protect and preserve property, but cannot sell any of the adult’s assets.
The adult must receive notice, unless the court otherwise orders because it would be harmful for the adult to be notified. The adult’s close personal living relatives (spouse, adult interdependent partner, parents, siblings, and children) are also notified of the application.
In the case of an objection, the court can order a hearing. The objecting party would be entitled to file evidence about why the person applying should not be appointed, and the court will determine whether a guardian or trustee is necessary, and who should be appointed as the guardian or trustee.
The Order from the Court which appoints you as guardian or trustee will contain information about the extent of your authority and what you are permitted to do on behalf of the adult. You must make decisions which are in the adult’s best interest. Orders will usually contain review dates, unless the adult’s condition is not expected to improve. That means that, after a certain period of time, the Court will review the Order to make sure it is still required. You will need to file information prior to the review date. If you are appointed as a trustee, the Order will also contain a time period after which you must provide an accounting. This requires you to provide information to the Court about how you have managed the adult’s finances. It is your responsibility to carefully manage and keep records about the adult’s finances. If you fail to do so, you can be held responsible for any loss to the adult’s finances.
I have concerns about how the trustee and/or guardian for my loved one is dealing with their affairs. What can I do?
If you are an “interested person”, which means a person over the age of 18 who is concerned for the welfare of an adult who has had a guardianship order or trusteeship order sought or made regarding them, there are certain options for obtaining information and requesting investigations under the Adult Guardianship and Trusteeship Act.
If you are concerned about management of the adult’s money, you can make an application to the Court for an order requiring the trustee to provide an accounting to the Court for review and approval. This will require the trustee to provide information about how they have used the adult’s money and what they have done with the adult’s property.
Interested persons can also ask the Court to review a guardianship or a trusteeship order. The Court will consider whether the adult’s capacity has changed, or if there is a change that affects the guardian or trustee’s ability or suitability to continue to represent the adult.
Finally, the Act also allows an interested person to make a complaint to a complaints officer under the Act if they have a reason to believe that the guardian or trustee is not complying with the order or their duties, and the adult is likely to suffer physical or mental harm, or financial loss. After receiving the complaint, the complaints officer will determine whether it is necessary to complete an investigation
If you have concerns about how your loved one’s money or other affairs are being managed by their guardian or trustee, we would be happy to meet with you to discuss options for addressing those concerns.