Is a family member or loved one struggling with making their own personal and financial decisions? Transitioning decision-making powers can be an extremely challenging process where conflicts can quickly arise. Our experienced legal team at Navigator Law can help you and your family navigate the adult guardianship and trusteeship legal process quickly and seamlessly.
An adult could need support in making personal and financial decisions for any number of reasons such as illness or cognitive impairment. If that’s the case, you’ll need to find the right agreement to transfer some or all the power to make decisions.
There are a number of options under the Adult Guardianship and Trusteeship Act for legally transferring the ability to make decisions. The right choice in your circumstances depends on the adult’s capacity. In a legal sense, capacity means the ability to:
This option is right if the adult is generally able to make most decisions for him or herself, but needs some support. This authorization allows a designated person, a ‘supporter’, to access some personal information in order to help the adult think through decisions.
If the adult needs more intensive decision-making support, a co-decision-making agreement allows for the adult and a designated person to make decisions together.
This authorization requires a court order that the adult must agree to, and isn’t an option for financial matters.
A health care professional can appoint a relative to make a specific, one-time decision for the adult about his or her case. This type of order is relevant if the adult does not have the capacity to make a decision about his or her care and has no Personal Directive or guardian. For example, the specific decision-making authorization could be regarding medical treatment, admission to/discharge from a hospital or residential facility, or other health care decisions.
Guardianship is appointed to a designated Guardian through a court order. A guardianship order is relevant if an adult is assessed and found incapable of making personal decisions and doesn’t have a Personal Directive in place.
A temporary guardianship order can also be issued in urgent cases where not making a decision will cause harm or even death. This temporary order typically lasts 90 days.
A Trusteeship Order is necessary if the adult does not have an Enduring Power of Attorney and loses the capacity to make financial decisions. The trusteeship order is needed for a designated person, a Trustee, to make financial decisions for the adult.
While the decision-maker role is slightly different depending on the specific authorization, there are certain basic requirements for the person appointed as the decision-maker. This person should be someone who knows the represented adult well. Also, it should be a person the adult trusts to make or support them in making decisions for them such as a family member or a close friend.
It can be a big responsibility to be named as a decision-maker for an assisted or represented adult. It can be stressful and time-consuming to meet all the responsibilities of the specific agreement. An adult guardianship lawyer can help with the workload of carrying out your duties. A lawyer can also reduce your risks of any legal issues such as litigation.
At Navigator Law, our legal team can help you with legal advice to help your family settle on the right type of decision-making authorization. We can also help plan for the future. By preparing certain legal documents and agreements, it will be easier to manage decision-making for the assisted or represented adult in the future.
Having a plan in place for decision-making in case of incapacity is important for everyone. Such a plan should include drafting a Personal Directive, an Enduring Power of Attorney, and a Will. With the right plan and legal documents in place, it isn’t necessary to make court applications for guardianship or trusteeship. A lawyer can help you and your family put together a plan that will save everyone time, money, stress, and conflict.
In some cases, it is especially important to plan for the future transfer of decision-making. For example, when a family member or a loved one is diagnosed with a degenerative disease such as dementia. In such a circumstance, the adult’s capacity to make decisions can deteriorate fast and it will be a stressful and difficult time in your life.
However, if the adult has not had an opportunity to draft a personal directive or enduring power of attorney before losing capacity, our lawyers can help you get started. The first step in starting the process for adult guardianship and trusteeship is to file an Application for Guardianship and Trusteeship of Dependent Adults. For Supported Decision Making, this application isn’t necessary. Instead, the adult needs to fill out a Supported Decision-Making Authorization Form.
To file an application under the Adult Guardianship and Trusteeship Act, a number of specific documents must be completed. Once those documents are submitted to the Office of the Public Guardian and Trustee, the court can issue an order.
An Application for Trusteeship Order must include a Trusteeship Plan for Represented Adults. A trusteeship plan is an outline of what a proposed trustee plans to do with the represented adult’s assets, liabilities, and expenses.
Also, note that in Alberta all Adult Guardianship and Trusteeship applications cost a $250 court filing fee.
Do I need a lawyer to obtain adult guardianship or trusteeship?
Not necessarily, but adult guardianship and trusteeship is a complicated process. A lawyer can help make sure all paperwork is filled out correctly and save you time, money and stress during the process.
How much does it cost to obtain adult guardianship and trusteeship?
It costs a $250 court filing fee to make an application for adult guardianship, trusteeship, or co-decision-making agreement. If you get support from a lawyer, there may be legal fees and some disbursements as well.
How long does it take to obtain adult guardianship or trusteeship?
It usually takes the court 3-6 months to appoint someone a Guardian or Trustee.
Who can become a Guardian or Trustee?
It should be a person you know well and trust to make decisions for you. Other requirements in Alberta is that the person is at least 18 years of age, has agreed to act as a guardian or Trustee, and that he or she has the mental capacity to make decisions for you.
Maybe someone in your family can’t fully make their own decisions anymore? Maybe you need support in your role as a designated decision-maker? Maybe you want to start planning for the future? Either way, Navigator Law will be there every step of the way to help you navigate the adult guardianship and trusteeship process.
Call us today to schedule an appointment with our experienced team.