Once a loved one becomes incapacitated or starts struggling to make decisions about personal and financial matters, things can get very complicated and frustrating for the family.
In the absence of estate planning documents like an enduring power of attorney or a personal directive authorizing an attorney or agent to make decisions, families must apply to the court for adult guardianship or trusteeship.
This will enable a family member to make important decisions in the best interests of an incapacitated loved one.
The process can be tough to navigate. The guardianship and trusteeship lawyers at Vest Estate Lawyers in Calgary can help you coordinate your application with the court and advise how to proceed.
What is the Adult Guardianship and Trusteeship Act?
The Adult Guardianship and Trusteeship Act (AGTA) is an Alberta law that covers the process of arranging decision-making responsibility for someone who has lost the capacity to make decisions – either through sudden incapacitation, illness or cognitive impairment.
Where there is no authorization via estate planning documents, the court must assign someone to arrange the affairs of the incapacitated person.
How is capacity defined in Alberta?
Capacity is defined as:
- The ability to understand information that is relevant to making a decision, and
- The ability to appreciate the reasonably foreseeable consequences of making or not making a decision
Capacity is measured on a spectrum rather than being a simple “yes” or “no” determination.
You may have the capacity to make some decisions but not others. For instance, making important financial decisions requires different decision-making skills to deciding whether to take one’s medication.
In such cases, the Act describes some of the options available to you.
Types of decisions
The AGTA is primarily concerned with decision-making in two key areas of life:
- Financial decisions – including buying, selling or managing assets
- Personal decisions – including decisions about healthcare, living arrangements, social arrangements, education, employment, legal proceedings, etc.
What are your decision-making options for financial matters?
If a loved one has lost the capacity to make financial decisions, two main options are available to the court to ease the situation for family members, depending on the circumstances:
1. Temporary trusteeship order
Where an adult has lost capacity and is in danger of financial loss unless somebody makes a decision, the court may grant a temporary trusteeship order to enable a decision to be made.
This will be awarded for 30 days and is extendable for up to six months if necessary.
2. Trusteeship order
For adults who have been assessed as mentally incapacitated, a trusteeship order provides another individual with financial decision-making capabilities indefinitely.
What are your decision-making options for personal matters?
If your loved one has lost some or all capacity to make personal decisions, multiple options are available depending on the circumstances.
1. Supported decision making (no court order required)
If an adult loved one can make some decisions but requires support to do so, he or she can nominate a designated person or ”supporter” to assist.
This can be arranged by filling in a form that authorizes the supporter to access personal information and assist in making decisions. No application to the court is necessary.
2. Co-decision-making order
A more binding arrangement for an adult who has some decision-making capability but needs assistance from a designated individual in deciding personal matters is to apply for a co-decision- making order.
3. Specific decision-making order
Where a health professional requires a decision to be made regarding a specific medical matter, a relative can be appointed to decide on a one-off basis if the patient has no mental capacity to make the decision.
4. Permanent or temporary guardianship
Guardianship is where a designated guardian is appointed by court order. The adult must be assessed and determined to be incapable of making decisions.
The guardian is usually appointed on a permanent basis but emergency temporary guardianship may be ordered for 90 days if a delay in decision-making could cause health problems or death.
Who can be named as a decision-maker in Alberta?
The role of decision-maker or supporter carries considerable responsibility.
As such, only certain people can be authorized to act in this role for financial or personal matters for an incapacitated person in Alberta.
The appointed individual should:
- Know the represented adult well
- Be trustworthy enough to make or facilitate important decisions
- Have the capacity to make decisions
- Be at least 18 years old
- Consent to act as the decision-maker
In most cases, the appointed guardian or trustee is a close friend or family member of the incapacitated adult.
Is a lawyer needed to arrange guardianship or trusteeship?
There is no legal requirement to hire a lawyer to apply for guardianship or trusteeship but most people find it easier to do so.
Our lawyers will help you complete the necessary paperwork and file all of the correct documents with the Office of the Public Guardian and Trustee, including:
- Capacity assessment report
- Application forms
- Background check forms
- A trusteeship plan for represented adults
How much do guardianship and trusteeship applications cost in Alberta?
Adult guardianship and trusteeship applications in Alberta cost a $250 court filing fee plus legal fees.
How long do guardianship & trusteeship applications take?
It can take between three and six months for the court to appoint a guardian or trustee.
For this reason alone, it is preferable to prepare the necessary estate planning documents well beforehand if possible.
An application to the court for trusteeship or guardianship is time-consuming and should only be necessary in the case of sudden or unexpected incapacitation.
Arrange guardianship and trusteeship in Alberta
At Vest Estate Lawyers in Calgary, our lawyers can help you prepare and submit your application for guardianship or trusteeship.
If you are hoping to avoid the need for guardianship or trusteeship, we can also assist you in creating all of the necessary estate planning documentation.
You can find out more with a free case evaluation.