Adult Guardianship and Trusteeship in Alberta

Introduction

1.1 Overview of Adult Guardianship and Trusteeship

Adult Guardianship and Trusteeship are legal processes that allow a designated person or entity to make decisions on behalf of an adult who is unable to do so due to age, disability, or illness. In Alberta, these processes are governed by the Adult Guardianship and Trusteeship Act (AGTA) and are designed to protect the rights and well-being of the represented adult.

Guardianship pertains to making personal decisions for the represented adult, which may include decisions about healthcare, living arrangements, and social activities. Trusteeship, on the other hand, focuses on managing the financial affairs of the represented adult, including paying bills, managing investments, and handling property transactions.

1.2 The role of the Office of the Public Guardian and Trustee

The Office of the Public Guardian and Trustee (OPGT) is a government agency in Alberta responsible for overseeing the adult guardianship and trusteeship system. The OPGT ensures that the rights and interests of represented adults are protected and that guardians and trustees fulfill their responsibilities in accordance with the law. The OPGT also provides assistance and guidance to individuals seeking to apply for guardianship or trusteeship and offers various resources to help guardians and trustees fulfill their roles effectively.

1.3 Differences between Guardianship and Trusteeship

While both guardianship and trusteeship are designed to assist adults who are unable to make decisions for themselves, there are key differences between the two:

• Scope of Decision-Making: Guardians are responsible for making personal decisions on behalf of the represented adult, such as healthcare, living arrangements, and participation in social activities. Trustees, on the other hand, manage the financial affairs of the represented adult, including paying bills, handling investments, and overseeing property transactions.
• Legal Requirements: The application process and legal requirements for obtaining guardianship or trusteeship differ. For example, guardianship applications require a capacity assessment from a qualified capacity assessor, while trusteeship applications require a financial assessment and may involve additional documentation related to the represented adult's finances.
• Ongoing Responsibilities: Guardians and trustees have different ongoing responsibilities and are subject to different reporting and review requirements. Guardians must regularly update the OPGT on the represented adult's well-being, while trustees are required to submit annual financial reports detailing the management of the represented adult's finances.

Understanding the differences between guardianship and trusteeship is essential for determining which type of support is appropriate for the represented adult and ensuring that their best interests are protected.

2. Types of Adult Guardianship and Trusteeship in Alberta

2.1 Private Guardianship and Trusteeship

2.1.1 Process and Requirements

Private guardianship and trusteeship involve the appointment of a family member, friend, or another trusted individual to act as a guardian or trustee for the represented adult. To apply for private guardianship or trusteeship, applicants must follow a specific process, which includes:

• Completing a capacity assessment for guardianship or a financial assessment for trusteeship
• Filling out the required application forms, such as the guardianship or trusteeship application, personal plan, and inventory of the represented adult's assets and liabilities
• Submitting the application package to the Court of King's Bench, along with any necessary supporting documents

The court will then review the application and, if approved, issue a guardianship or trusteeship order outlining the scope of the guardian's or trustee's authority and responsibilities.

2.1.2 Ongoing Responsibilities

Private guardians and trustees are required to fulfill their duties in the best interests of the represented adult. This may involve making personal and financial decisions on their behalf, as well as ensuring their well-being and safety. Private guardians and trustees must also comply with the reporting and review requirements set by the OPGT, including submitting annual reports or participating in reviews as needed.

2.2 Public Guardianship and Trusteeship

2.2.1 Role of the Public Guardian and Trustee

In cases where a suitable private guardian or trustee cannot be identified, or the represented adult's needs are complex, the OPGT may step in to act as a public guardian or trustee. The OPGT has the same decision-making authority and responsibilities as private guardians or trustees but is subject to additional oversight and reporting requirements.

2.2.2 Process and Requirements

The process for public guardianship and trusteeship is similar to that of private guardianship and trusteeship, with some differences in the application and assessment process. For example, the OPGT may conduct its capacity or financial assessments and may require additional documentation or information to support the application. Once the court approves the application, the OPGT assumes the role of guardian or trustee for the represented adult, and the same ongoing responsibilities and reporting requirements apply.

2.3 Co-Guardianship and Co-Trusteeship

Co-guardianship and co-trusteeship involve the appointment of two or more individuals to share the responsibilities of guardianship or trusteeship. This arrangement can provide additional support and ensure that decisions are made collaboratively in the best interests of the represented adult. The process for obtaining co-guardianship or co-trusteeship is similar to that of private guardianship and trusteeship, with applicants required to complete a joint application and adhere to the same legal requirements and ongoing responsibilities.

Understanding the different types of adult guardianship and trusteeship in Alberta can help you determine the most appropriate option for your loved one's unique needs and circumstances.

3. The Adult Guardianship and Trusteeship Process in Alberta

3.1 Pre-Application Requirements

Before applying for adult guardianship or trusteeship, there are several pre-application steps to follow:

3.1.1 Capacity Assessment

A capacity assessment is a critical component of the guardianship application process. An approved capacity assessor evaluates the represented adult's ability to make personal decisions. For trusteeship, a financial assessment may be conducted to determine the represented adult's capacity to manage their finances.

3.1.2 Selecting a Suitable Guardian or Trustee

Choose a guardian or trustee who is willing and able to act in the best interests of the represented adult. This person should be trustworthy, responsible, and have a strong understanding of the adult's needs and preferences.

3.1.3 Gathering Necessary Documentation

Collect all relevant documentation, including the represented adult's personal information, medical records, and financial information, to support the application process.

3.2 Filing the Application

3.2.1 Preparing and Submitting the Application

Once the pre-application requirements are met, applicants can proceed to prepare and submit the application for guardianship or trusteeship to the Court of King's Bench of Alberta. The application should include:

• A completed capacity assessment or financial assessment report
• Completed application forms, including the guardianship or trusteeship application, personal plan, and inventory of the represented adult's assets and liabilities
• Any additional supporting documents, such as medical records or financial statements

3.2.2 Court Review and Approval

The Court of King's Bench will review the application, and if it determines that guardianship or trusteeship is in the best interests of the represented adult, it will issue an order outlining the guardian's or trustee's authority and responsibilities.

3.3 Ongoing Responsibilities and Reporting Requirements

Guardians and trustees must carry out their duties in the best interests of the represented adult, ensuring their well-being, safety, and proper management of their personal and financial affairs. They must also comply with the reporting and review requirements set by the OPGT, which may include:

• Submitting annual reports on the personal or financial well-being of the represented adult
• Participating in reviews or providing updates to the OPGT as needed

Understanding the adult guardianship and trusteeship process in Alberta can help you navigate the legal requirements and ensure the best possible outcome for your loved one.

4. The Roles and Responsibilities of Guardians and Trustees

4.1 Guardianship Responsibilities

Guardians are responsible for making personal decisions on behalf of the represented adult, including matters related to health care, living arrangements, education, and social activities. A guardian's primary responsibility is to ensure that the adult's best interests are always considered and that their rights and dignity are respected.

Some specific guardianship responsibilities include:

• Assessing the adult's needs and preferences
• Developing a care plan that addresses the adult's well-being and personal goals
• Ensuring the adult receives appropriate medical care and treatment
• Making decisions about the adult's living arrangements and daily activities
• Ensuring the adult has opportunities for social interaction and community involvement
• Advocating for the adult's rights and interests in legal matters

4.2 Trusteeship Responsibilities

Trustees are responsible for managing the represented adult's financial affairs. Their primary responsibility is to ensure that the adult's financial resources are used effectively and responsibly, taking into consideration the adult's best interests and needs.

Some specific trusteeship responsibilities include:

• Managing the adult's assets, income, and expenses
• Developing a budget and financial plan that addresses the adult's needs and priorities
• Ensuring the adult's bills and debts are paid in a timely manner
• Filing the adult's taxes and managing any tax obligations
• Investing the adult's assets according to their best interests
• Providing financial support for the adult's dependents, if applicable

4.3 Ensuring the Best Interests of the Represented Adult

Both guardians and trustees have a fiduciary duty to act in the best interests of the represented adult. This means they must prioritize the adult's well-being, rights, and preferences in all decisions they make on the adult's behalf.

To ensure the best interests of the represented adult are upheld, guardians and trustees should:

• Regularly communicate with the adult to understand their needs, preferences, and goals
• Involve the adult in decision-making as much as possible, taking into account their capacity and wishes
• Seek input from other individuals who know the adult well, such as family members, friends, or professionals
• Monitor the adult's well-being and adjust care plans or financial arrangements as necessary
• Stay informed about the adult's rights and any legal obligations as a guardian or trustee
• Seek professional advice when necessary, such as consulting with a family lawyer or financial advisor

5. Co-Guardianship and Co-Trusteeship

5.1 Appointing Multiple Guardians or Trustees

In some cases, it may be beneficial to appoint multiple guardians or trustees to share the responsibilities of managing the represented adult's personal and financial affairs. This arrangement is known as co-guardianship or co-trusteeship. Co-guardians and co-trustees can provide additional support, divide responsibilities, and ensure that the best interests of the represented adult are always taken into account.

When considering the appointment of co-guardians or co-trustees, it is important to carefully assess the relationships between the potential appointees and the represented adult. Strong communication and collaboration skills, as well as a shared understanding of the adult's needs and best interests, are critical to the success of co-guardianship or co-trusteeship arrangements.

5.2 Decision-Making and Collaboration among Co-Guardians or Co-Trustees

Co-guardians and co-trustees must work together effectively to make decisions on behalf of the represented adult. This includes openly discussing the adult's needs, preferences, and best interests, and ensuring that all parties are informed and involved in the decision-making process.

To facilitate successful collaboration, co-guardians and co-trustees should:

• Establish clear lines of communication and regular check-ins to discuss the adult's needs and progress
• Divide responsibilities based on each individual's strengths, expertise, and availability
• Develop a shared understanding of the adult's goals, values, and preferences
• Consult with the represented adult and other relevant parties to gather input and make informed decisions
• Document decisions and actions taken on behalf of the adult to maintain transparency and accountability

5.3 Resolving Disputes between Co-Guardians or Co-Trustees

Disagreements between co-guardians or co-trustees can sometimes arise, particularly when making complex or emotionally charged decisions. In such cases, it is crucial to prioritize the best interests of the represented adult and seek resolution through open communication and negotiation.

If disputes between co-guardians or co-trustees cannot be resolved through direct discussion, it may be necessary to consider alternative dispute resolution methods, such as mediation or arbitration, to reach a consensus. In extreme cases, parties may need to seek guidance from the Court of King's Bench of Alberta to resolve disputes and ensure the represented adult's best interests are protected.

In all cases, the primary goal of co-guardians and co-trustees should be to act in the best interests of the represented adult, placing their needs, rights, and well-being above any personal disagreements or conflicts.

6. Reviewing and Updating Guardianship or Trusteeship Orders

6.1 Periodic Reviews of Guardianship or Trusteeship Arrangements

Guardianship and trusteeship arrangements should be regularly reviewed to ensure that they continue to serve the best interests of the represented adult. In Alberta, the Adult Guardianship and Trusteeship Act (AGTA) and the accompanying regulations set out specific requirements for periodic reviews of guardianship or trusteeship orders. These reviews may be conducted by the Office of the Public Guardian and Trustee (OPGT) or ordered by the Court of King's Bench of Alberta.

The frequency of these reviews may vary depending on the specific circumstances of the case, but they generally occur at least once every three years. During a review, the OPGT or the court will assess the ongoing need for guardianship or trusteeship, the appropriateness of the current guardian or trustee, and any changes in the represented adult's circumstances that may affect the order.

6.2 Modifying or Terminating a Guardianship or Trusteeship Order

There may be instances where a guardianship or trusteeship order needs to be modified or terminated. This can occur if the represented adult's needs or circumstances change, the guardian or trustee is no longer able or willing to fulfill their responsibilities, or if the guardian or trustee is not acting in the best interests of the represented adult.

To modify or terminate a guardianship or trusteeship order, an application must be made to the Court of King's Bench of Alberta. This application should include relevant evidence and documentation to support the requested change or termination, such as medical reports, financial statements, or affidavits from relevant parties.

6.3 Appealing a Guardianship or Trusteeship Decision

If a party is dissatisfied with a guardianship or trusteeship decision made by the Court of King's Bench of Alberta, they may have the right to appeal the decision. Appeals must be filed in accordance with the Alberta Rules of Court and should be based on valid legal grounds, such as an error in law, a misinterpretation of the facts, or a failure to consider relevant evidence.

It is important to note that the appeal process can be complex and time-consuming, and it may not guarantee a different outcome. As such, parties considering an appeal should consult with an experienced family lawyer to assess the merits of their case and navigate the legal process effectively.

7. Emergency Guardianship and Trusteeship Applications

7.1 Understanding Emergency Situations

In certain circumstances, an adult may require urgent guardianship or trusteeship due to an immediate risk to their health, safety, or financial well-being. Emergency situations can include situations where the adult is at risk of physical harm, financial exploitation, or is unable to make critical decisions related to their personal or financial matters. In these cases, an emergency guardianship or trusteeship application may be necessary to protect the adult's best interests.

7.2 The Process for Emergency Applications

The process for emergency guardianship or trusteeship applications is outlined in the Adult Guardianship and Trusteeship Act (AGTA). To initiate an emergency application, the applicant must complete and submit the required forms to the Court of King's Bench of Alberta, along with a detailed affidavit outlining the urgent circumstances and the necessity for immediate intervention.

In addition to the standard documentation required for a guardianship or trusteeship application, the applicant must also provide evidence to support the emergency nature of the application. This can include medical reports, police reports, or affidavits from witnesses familiar with the adult's situation.

Once the application is submitted, the court will review the materials and determine whether an emergency order is warranted. If granted, the emergency order may appoint a temporary guardian or trustee with specific powers and responsibilities to address the immediate risks and needs of the adult.

7.3 Limitations and Duration of Emergency Orders

Emergency guardianship and trusteeship orders are temporary in nature and are intended to provide immediate protection while a more comprehensive assessment of the adult's needs and circumstances is conducted. As such, these orders typically have a limited duration, usually up to 30 days, although the court has the discretion to extend the order if necessary.

During the period of the emergency order, the temporary guardian or trustee must act in the best interests of the represented adult and address the immediate risks and concerns outlined in the order. Meanwhile, the applicant should proceed with a regular guardianship or trusteeship application to ensure that the adult continues to receive the necessary support and protection once the emergency order expires.

8. Legal Issues and Considerations in Guardianship and Trusteeship Applications

8.1 Balancing the Adult's Autonomy and Protection

One of the central issues in guardianship and trusteeship applications is striking a balance between the adult's right to autonomy and the need for protection and support. The Adult Guardianship and Trusteeship Act (AGTA) is designed to protect the adult's rights while also ensuring their well-being. The legislation emphasizes the importance of the least restrictive and least intrusive approach when appointing a guardian or trustee, and the court will consider the adult's wishes, needs, and preferences throughout the application process.

8.2 Capacity Assessments and the Role of Capacity Assessors

Determining an adult's capacity to make decisions about their personal or financial matters is a crucial aspect of guardianship and trusteeship applications. Under the AGTA, capacity assessments must be conducted by qualified capacity assessors, who are professionals with expertise in assessing mental capacity. These assessors must evaluate the adult's ability to understand relevant information and appreciate the consequences of their decisions. The capacity assessment report plays a significant role in the court's decision to grant or deny a guardianship or trusteeship order.

8.3 The Principle of Least Restrictive and Least Intrusive Measures

The AGTA emphasizes the importance of using the least restrictive and least intrusive measures when appointing a guardian or trustee. This means that the court will consider alternatives to guardianship or trusteeship, such as supported decision-making agreements, co-decision-making arrangements, or specific powers of attorney, if they are appropriate and sufficient to meet the adult's needs. The court will also carefully review the proposed powers and responsibilities of the guardian or trustee to ensure that they are tailored to the adult's specific needs and circumstances.

8.4 The Best Interests of the Adult

The primary consideration in any guardianship or trusteeship application is the best interests of the represented adult. The court must consider a range of factors, including the adult's wishes, needs, preferences, cultural and religious beliefs, and existing relationships with family members and support networks. The appointed guardian or trustee must always act in the adult's best interests and consider their well-being in all decisions and actions taken on their behalf.

9. Additional Resources and Support for Guardians, Trustees, and Represented Adults

Navigating the complex world of guardianship and trusteeship can be challenging. Fortunately, there are numerous resources and support options available to help you throughout the process. Here are some government resources, organizations, and educational materials that can provide valuable guidance and assistance:

9.1 Government resources and programs in Alberta

• The Office of the Public Guardian and Trustee (OPGT) is a key resource for information on guardianship and trusteeship in Alberta. The OPGT offers comprehensive information, forms, and guidance for navigating the process: https://www.alberta.ca/office-public-guardian-trustee.aspx
• Alberta Human Services provides detailed information about adult guardianship and trusteeship, as well as related forms and resources: https://www.alberta.ca/adult-guardianship.aspx

9.2 Support groups and organizations

• The Canadian Centre for Elder Law (CCEL) is a national organization that focuses on legal issues affecting older adults, including guardianship and trusteeship: https://www.bcli.org/ccel

9.3 Educational materials and resources for guardians and trustees

• The Guide for Private Guardians is a comprehensive guide produced by the OPGT that covers various aspects of the roles and responsibilities of guardians and trustees: https://open.alberta.ca/publications/guide-for-private-guardians-adult-guardianship-and-trusteeship-act
• The Centre for Public Legal Education Alberta (CPLEA) offers a wealth of information on adult guardianship and trusteeship, including plain-language guides, FAQs, and resources: https://www.cplea.ca/guardianship/

These resources and organizations can provide valuable support to guardians, trustees, and represented adults throughout the guardianship and trusteeship process in Alberta.

The Role of a Family Lawyer in Adult Guardianship Proceedings

In navigating the intricacies of adult guardianship and trusteeship, a knowledgeable family lawyer can provide invaluable guidance and support. At FC&Z Family Lawyers, our experienced team can assist you in understanding the legal process, preparing necessary documentation, and advocating for your interests in court. We are here to help you make informed decisions that protect the well-being and best interests of your loved ones. Contact us today at 1-866-245-9829 or book a free 15-minute consultation online to find out how we can support you in this important journey. Together, we can help secure the best possible outcome for you and your family.

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