Guardianship and Trusteeship
If you are struggling to make personal and financial decisions, your loved ones may have to make an application under the Adult Guardianship and Trusteeship Act (AGTA) to obtain the legal authority required to act for you.
Guardianship and Trusteeship provides someone with legal authority to help represent you.Guardianship covers non-financial matters and allows someone to make personal decisions for an adult lacking the capacity. Those decisions can cover healthcare, social activities, where the person lives and legal proceedings that are not financial.
Trusteeship allows someone to make financial decisions for you if you do not have the capacity. That includes managing property, finances and investments or paying for bills.
Depending on the circumstance, someone can be appointed to make your decisions for you or you can choose someone to help.
What Can Happen if I Don’t Appoint a Guardian or Trustee?
If you become mentally incapacitated and you do not have an Enduring Power of Attorney and a Personal Directive in your estate plan, a judge will decide who will be appointed your Guardian and Trustee.
An Enduring Power of Attorney and Personal Directive are important components of a sound estate plan that also includes a Last Will and Testament. If you don’t have an estate plan and you are no longer able to make your own decisions, it will be necessary for family members to go to court to ensure you get the help you need. Many steps can be involved that cost money and take time.
Our experienced estate planning lawyers can guide you efficiently through the process, and can help give you peace of mind.
What Different Levels of Decision-making Support Are Available?
Alberta’s Adult Guardianship and Trusteeship Act offers various options for personal decision-making support to those who need it.
Supported decision-making: An adult with some capacity can choose someone they trust to assist them with accessing information and communicating their decisions,
Specific decision-making: This is a decision for an adult who has lost the capacity to make health care and residential facility placement decisions.
Co-decision-making: Someone to share decision-making with an adult who requires assistance because of a loss of capacity but can make choices with support.
Adult guardianship: A guardian makes decisions on behalf of an adult who does not have capacity.
How do I know if I Need a Guardian or Trustee?
If you lose your decision-making capacity, a court order will be required to ensure you receive the support you need. Court orders are necessary to appoint:
- an adult guardian for personal decisions
- an adult trustee for their financial decisions
- both guardian and trustee for all their decisions
Under the AGTA, you need a guardian if you are 18 or older and have had an assessment completed that indicates you lack capacity to make personal decisions. You may be vulnerable because of a permanent or temporary disability or illness and you don’t have a Personal Directive dictating who can represent you. A Guardian is appointed when less-intrusive and less-restrictive options are unlikely to be effective.
A Guardian cannot make financial decisions for you. Instead, the court can appoint a Trustee to manage your money to pay for your bills and take care of your investments, real estate and personal property. Your Trustee can also apply on your behalf for benefits such as Old Age Security and file your income tax return. Trustees cannot make personal decisions such as those involving your medical treatment or where you will live.
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.
Guardianship and Trusteeships are Integral Components of Estate Planning for People with Disabilities
If you have a disabled child who needs care beyond turning 18 years old, applying to the Court for Guardianship and Trusteeship will ensure you have the authority to make decisions after that age
When Should I Start Making my Estate Plans?
It is in your best interest to contact a lawyer and start your estate planning now, while you are able to have a say in selecting those who could potentially care for you if you become incapacitated through illness, age or injury. The Alberta government recommends that anyone 18 years and older should have an Enduring Power of Attorney, a Personal Directive and a Last Will and Testament. These documents can help you set out your future in the event you need a Guardianship or Trusteeship.