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How to apply for guardianship and trusteeship

Applications for Guardianship and Trusteeship of dependent adults (known as Represented Adults) are governed by the Adult Guardianship and Trusteeship Act (AGTA), which is summarized below.  This summary is not intended to be a comprehensive description of the Guardianship and Trusteeship Act, nor is it intended to provide legal advice. If you have any questions, feel free to contact our office by phone or online.

Under the AGTA, there are four options regarding personal decision making, created to reflect the needs of four different individuals. The first two options, Supported Decision Making and Co-Decision Making, do not require a Court Order.

If an adult has capacity to make decisions, but sometimes needs some help, the adult can complete an Authorization that designates a person to be their "Supporter". This does not require a Court application.  In this instance, the adult is called the "Supported Adult".  The Supporter is allowed access to personal information, such as medical records, to assist the Supported Adult with decision making.  However, the Supporter should not make decisions for the Supported Adult.

Specific Decision Making

If a health care provider determines that an adult is incapable of making specific decisions or incapable of making decisions for a certain period of time (for example, while recovering from a stroke), the health care provider can choose a relative of the adult to make specific decisions on behalf of the Adult.  In this instance, the person chosen is called the Specific Decision Maker. There are definite restrictions on the type of decisions the Specific Decision Maker is allowed to make. These restrictions can be found in the Act or by contacting our office or the Alberta Office of the Public Guardian (http://humanservices.alberta.ca/guardianship-trusteeship/office-public-guardian.html)

Co-Decision Making

If a trained Capacity Assessor determines that an adult has significantly impaired decision making ability, but can still make decisions with the appropriate guidance and support from another person, an application for a Co-Decision-Making Order can be made to the Court.  In this instance, the adult is called the Assisted Adult and the appointed person is called the "Co-Decision-Maker".  The Co-Decision-Maker's role is to provide the guidance and support the Assisted Adult needs to make decisions. Once the Assisted Adult makes a decision, the Co-Decision-Maker must do everything necessary to implement that decision, provided that it is not likely to cause harm to the Assisted Adult.

Guardianship

If an approved Capacity Assessor or physician determines that an adult lacks any capacity to make decisions, an application for a Guardianship Order can be made to the Court.  In this case, the adult is called the Represented Adult and the appointed person is called the Guardian. A Guardian has the authority to make decisions for the Represented Adult in all personal matters the Court Order stipulates.

 The first step in the application process is a Capacity Assessment, conducted by an accredited Assessor, physician or a psychologist. The documents and required forms, which can be found on the Public Guardian's website, are compiled and submitted to a Review Officer, appointed by the Minister of Seniors and Community Supports.   The Review Officer makes a report on the application and forwards the report and original application to the Court.  

Trusteeship plan for Represented Adults

The Trusteeship Plan is an outline of what assets, expenses and liabilities the adult has and what the proposed Trustee plans to do with those assets, liabilities and expenses.   The proposed Trustee can request that the Represented Adult be allowed to have a self operated account, with a maximum monthly balance suitable to the size of the Represented Adult's estate.  This self operated account can be used for whatever the Represented Adult wishes and does not have to be accounted for by the Trustee.

Once an Order is granted, it applies until a date set by the court or when a new person is appointed. Trustees still have to maintain detailed records of their handling of the Represented Adult's estate.  The same applies to Guardians.  A review is necessary when it is requested by a third party or when there is a change in the circumstances or capacity of the Represented Adult.

 

We're here to help with your Guardianship and Trusteeship inquiries

If you have questions or require additional information about Guardianship and Trusteeship Services with Sharek Logan & van Leenen LLP, please complete the form below with a description of your legal issue.  We will respond to you as soon as possible.  Thank you!

Sharek Logan & van Leenen LLP Guardianship and Trusteeship Legal Team

David van Leenen

Managing Partner

Michael Gibson

Associate

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