When Does This Area of Law Apply?
Adult Guardianship & Trusteeship orders deal with adults who need help in making their own day-to-day health or financial decisions. Adults can become incapacitated through accidents, illness or old age. Adult Guardianship and Trusteeship orders can also be applied for adults with developmental disabilities from birth. In either case, Adult Guardianship & Trusteeship involves an adult who needs to have someone legally assigned to make decisions on their behalf.
The Adult Guardianship and Trusteeship Act allows the Court of Queen’s Bench to appoint a person as the Guardian of an adult who is mentally incapacitated. The guardian is often a relative or close friend who is familiar with the adult’s situation. In certain circumstances, however, there is no close friend or family member to help and the law allows for the appointment of the Public Guardian. The Public Guardian is an office of the Provincial Government that only gets involved where there is no family member or other interested party who is willing to take on the responsibility of being the guardian of the represented adult.
Guardianship
A Guardian is empowered to make certain decisions on behalf of a represented adult. Depending on the situation, these decisions might include decisions about the adult’s participation in certain activities, consent regarding health care and decisions as to where the represented adult will live.
Guardians cannot make decisions about anything related to financial matters unless they are also appointed as a Trustee of the represented adult. It is fairly typical for a Guardian to also be appointed Trustee of the represented adult.
Trusteeship
A Trusteeship order concerns the financial issues of an adult who is incapacitated. If an adult becomes incapable of responsibly making their own financial decisions, someone must act as their Trustee.
Trustees are permitted to make financial decisions related to the adult in question. A Trustee’s powers are limited to only financial issues. The roles of a Trustee can involve the signing of contracts, managing apartment and nursing home leases, keeping track of all income and expenses and preparing appropriate tax returns, as they are due.
Trust Accounting
When someone takes on the responsibilities of Adult Trusteeship, it is a requirement that they provide an accounting of trust records, periodically, for Court approval. The frequency of these Court reviews depends on the particulars of each case. In some circumstances, it may be possible to reduce the frequency of these reviews.
Guardianship and Trusteeship Disputes
All of a dependent adult’s immediate family members must be notified of an application for Guardianship or Trusteeship. At times, this can cause arguments over who is the best family member to act as the Guardian or Trustee for the adult. It is very helpful to begin these proceedings with frank discussions about who is interested or who has the time and resources to act as the adult’s Guardian or Trustee. Preemptive family discussions can help reduce the risk of disputes during the legal process and avoid costly court applications.
Frequently Asked Questions
What Is an Adult Guardian?
An Adult Guardian is an individual appointed by the Alberta Court of Queen’s Bench to make personal and healthcare decisions for an adult where the Court is satisfied that the adult does not have the capacity to make these types of decisions on their own.
Under the Adult Guardianship and Trusteeship Act, the authority of the Adult Guardian may vary considerably depending on the circumstances of the adult requiring guardianship. In certain cases, the Guardian may have complete authority over all of an adult’s personal decisions, whereas in other cases the Guardian’s authority may apply only to health care decisions, but not to day-to-day personal decisions.
Types of decisions which a guardian may have authority over include:
- The adult’s healthcare;
- Where, with whom and under what conditions the adult is to live, either permanently or temporarily;
- The persons with whom the adult may associate;
- The adult’s participation in social activities;
- The adult’s participation in any educational, vocational or other training;
- The adult’s employment; and
- The carrying on of any legal proceeding that does not relate primarily to the financial matters of the adult.
What Is an Adult Trustee?
An Adult Trustee is an individual appointed by the Alberta Court of Queen’s Bench to make financial decisions on behalf of an adult where the Court is satisfied that the adult does not have the capacity to make these types of decisions on their own.
Who Can Apply to Be a Person’s Guardian and Trustee?
The Adult Guardianship and Trusteeship Act states that any person “who is 18 years of age or older and who is concerned for the welfare of a person” may apply to the Court to become a person’s guardian or trustee. In most situations it is the adult’s parents, siblings, or other close family members who apply for and are appointed as guardians and trustees by the Court.
In certain circumstances the government will apply for guardianship or trusteeship. This involves either the Office of the Public Guardian or the Office of the Public Trustee and occurs where there are no family members willing or available to carry out this responsibility.
If I Am a Parent Do I Need to Apply for Guardianship and Trusteeship for my Adult Child?
Yes, if you are the parent of a child who will be unable to make their own personal and financial decisions when they turn 18 you will require a Court Order appointing yourself as guardian and trustee to make these decisions on their behalf. The Adult Guardianship and Trusteeship Act allows the application process to be commenced up to 12 months before your child’s eighteenth birthday.
How Long Does It Take to Be Appointed As a Guardian or Trustee?
There are several stages required to be appointed as a person’s guardian and trustee. The first step is to submit all of the necessary documentation to a Review Officer. This person is a government employee and is responsible for vetting the documentation, sending notices to family members, and visiting the adult in person. When this review is done the Review Officer “signs off” on the application and it is submitted to the Court for final approval.
In most situations it takes between 2-3 months from the time the documents are submitted to the Review Officer until the Court Order is granted. However, if there are issues with the documentation or if the application is contested, the timeline will be longer.
Is It Possible to Have More than One Guardian or Trustee Appointed?
Yes, it is possible to have multiple persons appointed to act jointly as a person’s guardian and trustee. It is also common for an alternative guardian or trustee to be named as a backup if the primary guardian or trustee is unable to act.
Is a Guardian Entitled to Compensation?
A guardian is entitled to be reimbursed for direct expenses incurred in carrying out their responsibilities. However, a guardian is not entitled to compensation for their time and effort expended in order to fulfill these responsibilities.
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