The Adult Guardianship and Trusteeship Act (the “AGTA”) is Alberta legislation that enables an interested party to obtain legal authority to assist an adult with his or her decision making. The decision making arrangements contemplated under the AGTA may be useful for individuals requiring varying levels of support including adults with language or communication difficulties, adults living with lifelong mental impairments and senior citizens struggling with dementia or other cognitive impairments.
If an individual lacks the capacity to understand information relevant to making decisions, or to appreciate the consequences of making or failing to make certain decisions, then the appointment of a Guardian and/or Trustee may be appropriate. In order for a Guardian and Trustee to be appointed, an application must be made to the Court for a Guardianship and Trusteeship Order.
Guardianship
In situations where an adult lacks the mental capacity to make decisions regarding their own personal matters, he or she may benefit from the appointment of a Guardian. In order to apply to the Court for a Guardianship Order, a doctor or other designated Capacity Assessor must complete a Capacity Assessment Report stating that the adult lacks the capacity to make decisions about personal matters. Personal matters are any matters that relate to a person’s health care, living conditions, participation in social activities and/or educational training, but do not include decisions relating to financial matters. If a Guardian is appointed to make decisions on behalf of an adult, the Guardian’s authority is restricted to areas in which the adult lacks capacity.
In order to obtain the authority to make financial decisions on another individual’s behalf, a Trusteeship Order is required.
Trusteeship
In circumstances where an individual lacks the capacity to make financial decisions, it may be appropriate to apply to the Court for a Trusteeship Order. As is the case with an application for a Guardianship Order, a Capacity Assessment Report is required in order to apply to the Court for a Trusteeship Order. If appointed Trustee, the Trustee would be in a position to take possession and control of the adult’s property, sign all documents on the adult’s behalf, do anything in relation to financial matters that the adult could do themselves, and make expenditures out of the adult’s property for the adult’s education, support and care. It is significant to note, however, that a Trustee does not have the authority to sell, encumber or purchase land on the adult’s behalf, unless he or she has been given specific permission to do so from the Court.