How is a Guardian Different from a Trustee?

A Guardian is responsible for making personal decisions and a Trustee is responsible for making financial decisions.

Personal decisions that a Guardian may be responsible for include decisions about the adult’s:

• Healthcare
• Living arrangements
• Education
• Social activities
• Employment
• Legal proceedings (as long as they aren’t primarily about financial matters).

Guardians can’t make decisions about:

• Finances – this is the responsibility of a Trustee
• Organ Donation
• Sterilization
• Wills/Estate Planning

WHEN DOES SOMEONE NEED A GUARDIAN?

When an adult is incapable of making their own personal decisions, a Guardian may be appointed to make these decisions on the adult’s behalf. Below are some examples of different circumstances where a Guardian may need to be appointed:

• When a disabled child turns 18;
• When an adult has a serious accident or suffers a major health event such as a stroke but has not previously designated someone to act on their behalf; or
• When an elderly family member loses cognitive capacity because of illnesses such as dementia or Alzheimer’s, and they have not previously designated someone to act on their behalf.

Sometimes the same person is appointed by the Court to act as both Guardian and Trustee for an adult, but other times it can make more sense for one person to be Guardian and another person to be Trustee. It is important to understand the difference between these two roles when deciding how to proceed.

An application must be made to the Court for these appointments to be made. The Court relies on capacity assessments prepared by an appropriate health care provider (generally a physician) to decide whether someone should be appointed. 

WHAT DOES A GUARDIAN DO?

Guardians have authority to make personal decisions on behalf of the adult. The extent of a Guardian’s authority will be set out in the Guardianship Order granted by the Court, but this can include decisions about the following:

• Where the adult is to live – can they live at home or do they need to go to a care facility?
• Coordinating with the staff at a care home to ensure the adult’s care and comfort.
• Deciding who the adult can have contact with.
• Taking them to medical appointments or approving medical treatments on their behalf.
• Organizing the adult’s participation in social activities or day programs.
• Coordinating employment or education opportunities as appropriate. 

It is important to keep in mind the wishes of the represented adult and ensure that those wishes are heard and respected as long as those wishes won’t cause harm to the adult. Often, a Guardian is appointed because the adult has been making decisions that are harmful to themselves or don’t consider the long term implications of certain choices.

Guardians must always remember that they are expected to:

• Exercise their authority in the adult’s best interests;
• Act diligently and in good faith;
• Make decisions in a way that encourages the adult to become (to the extent possible) independent and capable of deciding (some) things for themselves; and
• Act in the least restrictive and least intrusive way possible that is still likely to be effective.

Finding the appropriate balance when making personal decisions for someone can be a challenging task, but the focus must always be on the best interests of the adult.

ARE GUARDIANS COMPENSATED FOR THEIR WORK?

No. A Guardian is not entitled to compensation under the Adult Guardianship and Trusteeship Act.  However, Guardians will be paid back for expenses they pay for on behalf of the adult or that they incur in carrying out their responsibilities. These expenses must be appropriately identified and accounted for before reimbursement will be approved.

WHAT HAPPENS AFTER I’M APPOINTED?

Guardianship Orders may specify a date when you are required to return to Court and apply for a review of the Order.  The Court may want an opportunity to review the steps that have been taken by the Guardian on behalf of the adult to ensure that they are complying with their obligations.  This can also be required if the capacity of the adult is expected to change (either improve or worsen).  During these reviews, the Court may request that the Guardian explain why they made certain decisions for the adult.  

Our office can assist with these applications.  We recommend that Guardians keep an ongoing record or list of major decisions they have taken on behalf of the adult and make notes of the reasons why those decisions were made.

CAN I DO SOMETHING TO AVOID THE NEED FOR A GUARDIAN (OR TRUSTEE)?

We know these steps may seem complicated and overwhelming, so you may be pleased to know that it is possible to avoid the need for a Guardian. By planning ahead, you can often avoid the need for your family to make a court application should something happen to you.  

A court application for Guardianship can generally be avoided if you have a valid Personal Directive.

A Personal Directive is a document that names someone to make personal decisions on your behalf if you are no longer able to make those decisions yourself. We recommend that if you have the legal capacity to make a Personal Directive, you should do so.

However, in circumstances where a child with developmental disabilities turns 18 and lacks the capacity to make those documents, these steps may be unavoidable.