An adult who has lost the capacity to make decisions for themselves requires assistance. In Alberta, to help an adult who has lost capacity, and who has not previously designated someone to assist them (for example, through a Personal Directive or an Enduring Power of Attorney), an Order from the Courts is required.
ADULT GUARDIANSHIP vs. ADULT TRUSTEESHIP
The law in Alberta differentiates between a decision-maker for personal decisions and a decision-maker for financial decisions.
A Guardianship Order provides legal authority to the appointed decision-maker to make personal decisions for the adult without capacity, whereas a Trusteeship Order provides legal authority to the appointed decision-maker to make financial decisions for the adult without capacity.
It is possible for an appointed decision-maker to be both the guardian and the trustee, such that they can make all decisions for the adult without capacity.
WHO IS ELIGIBLE TO BE A GUARDIAN AND/OR TRUSTEE?
To be a guardian, you must:
- be 18+ years old;
- consent to being a guardian;
- consider the views and wishes of the adult;
- have a relationship with the adult and be available to make decisions for the adult;
- not have a conflict with the adult; and
- complete a criminal record check and reference checks, following the Office of the Public Guardian and Trustee's (“OPGT”) processes.
To be a trustee, you must:
- be 18+ years old;
- consent to being a trustee;
- consider the views and wishes of the adult;
- be suitable to be appointed as trustee;
- complete a criminal record check, credit check, and reference checks, following the OPGT's processes; and
- provide a bond or ask the Court to dispense with the bond if you are not ordinarily a resident of Alberta.
Once appointed, guardians and trustees must act in the adult's best interest at all times.
HOW DOES A GUARDIANSHIP/TRUSTEESHIP APPLICATION WORK?
You can apply for Guardianship/Trusteeship either through a desk application or through a hearing in Court. To decide which process to use, a couple factors to consider are whether someone is expected to disagree with your application and whether the application is time sensitive.
In a desk application, you or your lawyer do not need to appear in Court and the judge will issue a decision based on the paperwork you have submitted. A desk application usually takes around 8-12 months from the start of the process to the issuance of the judge's decision.
In a hearing application, you or your lawyer must appear in Court to discuss the application with the judge, who will then make a decision based on the discussion and the paperwork you have submitted. A hearing application may take less time than a desk application, but there are usually additional costs involved.
Finally, it may be possible to apply for an Urgent Guardianship/Trusteeship Order if the adult is at immediate risk of death or serious physical or mental harm, or if there is an immediate danger that the adult will suffer serious financial loss. However, this is generally a high threshold to meet and there are additional factors to consider, including the time-limited duration the Guardianship/Trusteeship Order is in place.
TAKEAWAYS
Applying for Guardianship/Trusteeship is a lengthy process and can be costly. You may wish to consider if any other options are suitable in the circumstances (for example, supported decision-making, specific decision-making, co-decision-making, or an informal trusteeship).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.