An adult who lacks capacity to make decisions about his or her financial affairs or personal matters may be vulnerable, and require the Court to appoint an individual to make personal and financial decisions on his or her behalf. If someone does not execute and Enduring Power of Attorney, and they lose capacity, a guardian and trustee should be appointed to make the personal and financial decisions.
What is a Guardian and Trustee?
A guardian is an individual appointed by the Court to make personal decisions on behalf of the Adult.
A trustee is an individual appointed by the Court to make financial decisions on behalf of the Adult.
There are two (2) types of Orders; Guardianship Orders and Trusteeship Orders.
Guardianship Orders appoint a person to make decisions regarding the physical aspects of an Adult; such as living situations, medications, and medical decisions.
Trusteeship Orders appoint a person to make decisions regarding financial and asset based aspects of and Adult; such as money, business, and asset affairs.
Responsibilities of a Guardian and Trustee
As a guardian and trustee, the legal requirement is for the person to put the Adult’s best wishes first in regards to personal and financial decisions.
Who needs a Guardian and/or Trustee and Why?
In Alberta, if an adult failed to execute a personal directive and lacks the capacity to make decisions about personal matters, he or she will require the court to appoint a guardian, an individual with the legal authority to make personal decisions on behalf of an incapacitated adult.
If an adult failed to execute an enduring power of attorney and lacks the capacity to make decisions about financial matters he or she will require the court to appoint a trustee, an individual with the legal authority to make financial decisions on behalf of an incapacitated adult
It is possible for the same person to be appointed by the court to act as both a guardian and trustee of an incapacitated adult.
Who can be appointed as a Guardian and/or Trustee?
Typically a friend or family member of an incapacitated adult will apply to be appointed as his or her guardian and/or trustee. In instances where no one is available or willing to act the Office of the Public Guardian and Trustee may be appointed.
What can I do if I want to apply to be a Guardian and/or Trustee?
If you are an individual seeking to be appointed as a guardian and/or trustee of an incapacitated adult, please contact Brett Turnquist of our office.
Brett Turnquist practices exclusively in the areas of wills, estates, and incapacity matters.
Initial consultations are free of charge.