An adult who has been affected by illness, accident, aging, or disability may require assistance in decision making where there is a legitimate concern for the person’s welfare.
In Alberta, the adult guardianship process is established by the Adult Guardianship and Trusteeship Act, S.A. 2008, c. A-4.2.
When is a guardian needed?
An adult is presumed to have the capacity to make decisions until the contrary is determined. “Capacity”, as defined in the Adult Guardianship and Trusteeship Act, means the ability to understand information relevant to a decision and to appreciate the reasonably foreseeable consequences of making or not making the decision.
A person may have capacity to make some decisions but not others. The fact that you may disagree with someone’s decisions is not sufficient to establish that a guardian needs to be appointed for them. An order for guardianship is only made after a capacity assessment has been performed, and the results confirm that the person lacks capacity to make some or all of their own decisions.
Capacity assessments are carried out by trained medical professionals – typically, a physican or psychologist, but in some cases it may also be done by a nurse, social worker or occupational therapist. A capacity assessment will only be carried out if there are legitimate reasons to believe that the adult lacks the ability to make their own decisions, and that their condition is not due to something temporary or reversible.
Guardianship can also be sought for a minor who will be turning 18 years old in the next year and will require someone to make their decisions after they are an adult.
Where an adult requires assistance to make a decision, the least restrictive and intrusive form of assisted or substitute decision-making that is likely to be effective is implemented. The types of assisted decision-making are discussed below. Any known values and beliefs, and wishes expressed by the adult while the adult had capacity must be considered in determining whether a decision is in the adult’s best interests.
What types of guardianship are there?
There are several types of guardianship that may be considered, depending on the degree of a person’s incapacity, and whether the decision-making is related to personal or financial matters.
For personal matters
The most comprehensive option where assistance is required for decision-making in personal matters is a guardianship order. This option permits the guardian to help with personal, non-financial decisions including health care, where to live, who to associate with, participation in educational and social activities, employment, and legal proceedings. A guardian may only be needed for some of these decisions, but is authorized to assist with all of them. A guardian cannot make decisions about finances or sterilization. A guardianship order may be temporary and can be granted on an urgent basis to prevent death or harm.
A guardian must be over 18-years-old, have a relationship with the adult, consent to acting as a guardian, and be willing to act in the best interests of the adult. Typically, the person appointed will be a relative or a close friend.
For adults who retain some capacity and are capable of making some of their own decisions about personal matters, there are other, less intrusive options available besides a guardianship order, including:
SUPPORTED DECISION-MAKING AUTHORIZATIONS
An adult with capacity can complete a “Supported Decision-Making Authorization” form, which names one to three people to help them make decisions. The adult can specify in what areas they need support. This type of supported decision-making does not require a court order.
A health care provider can choose the nearest adult relative to make a health care decision, including treatment and placement or discharge from a residential facility, where the provider believes the adult does not have the capacity to consent and does not have a personal directive or guardian. This type of assisted decision-making cannot be used for end of life decisions.
For financial matters
When an adult requires assistance with decision-making in relation to financial matters, a trusteeship order can be granted. The trustee assists with financial decisions related to buying, selling, managing, or protecting property, including money. Similar to a guardianship order, a trusteeship order may be temporary and may be granted on an urgent basis to prevent financial loss.
A less intrusive option that may be appropriate in some cases is an informal trusteeship, which can be used to manage an adult’s government benefits, such as Old Age Security, Canada Pension Plan or Assured Income for the Severely Handicapped (AISH), where the adult has difficulty managing their money and remembering to pay their bills. An informal trusteeship is arranged through completing the necessary forms and procedures set by the government department that issues the benefits.
Impact of a Personal Directive or Enduring Power of Attorney
The various types of guardianship are intended to provide assistance in cases where a person has not made provision for what should be done in the event that they lose capacity. However, it is possible for individuals to set up arrangements for this circumstance in advance, while they still have capacity, by preparing a personal directive and a power of attorney.
A PERSONAL DIRECTIVE
A personal directive is a signed, witnessed document completed by an adult with capacity that names someone to be their agent to make personal (non-financial) decisions on their behalf if they lose capacity. If an adult has a personal directive and has capacity, the adult can still complete a Supported Decision-Making Authorization or obtain a co-decision-making order. If the adult loses capacity, a guardianship order should not be required unless the personal directive does not address all types of personal matters.
AN ENDURING POWER OF ATTORNEY
An enduring power of attorney is a signed, witnessed document completed by an adult with capacity that appoints an attorney (decision-maker) to make financial decisions on their behalf. At the choice of the person preparing it, an enduring power of attorney can take effect immediately after it is signed, on a specific date, or once the adult loses capacity. If the adult loses capacity, a trusteeship order should not be necessary unless the enduring power of attorney does not address all types of financial matters.
How an estate planning lawyer can help you
If you are concerned that someone you know may require a guardian or help with decision-making, a lawyer can review the different options that are available, help assess which is best suited to your circumstances, and navigate the court application process, including arranging for a capacity assessment.
Alternatively, a lawyer can also assist with the preparation of a personal directive or power of attorney that may reduce or avoid the need for a guardianship order later down the road.
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PARALEGAL, LEGAL ASSISTANT
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