Contested Represented Adult Matters
Who is a Represented Adult?
In Alberta, a Represented Adult is someone who is unable to manage their own finances or make decisions on such matters as their health. This could be as the result of a mental disability such as an acquired brain injury, dementia or a chronic mental illness. In those cases, a Guardian and/or Trustee can be appointed.
If you have an Enduring Power of Attorney (EPA), the person, or people, you designate will be able to step in and make decisions on your behalf when you are no longer able. An EPA must be created when you are mentally capable, since you must understand the legal authority you are granting to others. An EPA can begin immediately after it is created and continue after you lose mental capacity or in the future, commencing if and when you lose mental capacity.
Without an EPA, a family member or a friend must go to court to get the legal authority to manage your affairs.
What is a Guardian and Trustee?
A Guardian is an individual appointed by the Court to make personal decisions on behalf of the Represented Adult. According to the Government of Alberta, a Guardian makes decisions on such matters as:
- health care;
- living arrangements;
- participation in educational, vocational and other training;
- participation in social activities;
- employment; and
- legal proceedings.
A Guardian does not get involved in financial matters. Instead, a Trustee is appointed by the Court to make those decisions. A Trustee will manage and distribute the assets of the Represented Adult but has no control over their personal affairs.
A trustee manages the Represented Adult’s investments, real estate and personal property to pay such things as:
- daily and recurring expenses;
- accommodation and care;
- medical-related expenses; and
- educational expenses.
A Trustee will also file the adult’s income tax returns and apply for financial benefits on their behalf such as the Alberta Seniors Benefit or Old Age Security.
Who Can be Appointed as a Guardian and/or Trustee?
Typically, a friend or family member of a person no longer able to care for themselves can apply to be appointed Guardian and/or Trustee. To be a Guardian or Trustee, you must be 18 or older, be suitable and consent to being a trustee and be willing to consider the views and wishes of the Represented Adult. You must also complete a criminal record check, and reference checks following Office of Public Guardian and Trustee (OPGT) guidelines.
In instances where no one is available or willing to act as Guardian and/or Trustee, the OPGT may be appointed to serve in the role.
What if There is a Dispute Over Who Should Serve?
More than one person may make an application to be appointed as a Guardian and/or Trustee for a Represented Adult. If no one can agree on who should be appointed, an application is made and the Court determines who would be the best fit.
What if I Have an Issue with a Guardian/Trustee?
Sometimes family members or friends have concerns with the personal decisions the Guardian or Trustee is making on behalf of a Represented Adult. They may believe that a Guardian is not complying with the court order or that a Represented Adult is at risk of suffering physical or mental harm. In other instances, concerns are raised about the manner in which a Trustee is managing a Represented Adult’s financial affairs and there may be questions about how an adult’s money is being spent.
The Alberta Adult Guardianship and Trusteeship Act provides concerned family members and friends with the ability to apply to the Court to seek information on the decisions made by a Guardian or Trustee.
Do You Have Questions about Guardians/Trustees?
If you are concerned about the decisions being made by a court-appointed Guardian and/or Trustee and would like further information on your legal options, please contact our office.
Initial consultations are free of charge.