Substituted Decision Making Under the Adult Guardianship and Trusteeship Act
Do you have an adult family member or loved one struggling with making their own personal and financial decisions? Transitioning decision-making powers can be an emotional, stressful and time-consuming process, particularly if there is not a Power of Attorney or Personal Directive in place. At Gurevitch Burnham Law Office, our dedicated legal team is committed to helping you and your family navigate the complexities of the adult guardianship and trusteeship process in Alberta.
What is Adult Guardianship and Trusteeship?
There are many reasons why an adult may need support in making personal and financial decisions. These include permanent or temporary illness that renders decision making impaired, such as dementia, or perhaps a developmental disability. If this is the case, they may need to transfer their decision-making powers to another person. Transferring decision making is also called substituted decision making.
If the adult, while having the required legal capacity, prepared an Enduring Power of Attorney and Personal Directive, those documents can be activated. The Attorney under the Power of Attorney and the Agent under the Personal Directive will then become the substituted decision-makers. However, the court will be required to appoint a substituted decision-maker by appointing a guardian, trustee or both if the adult does not have a Power of Attorney or Personal Directive.
In Alberta, the governing legislation for substituted decision making is the Adult Guardianship and Trusteeship Act. There are several options under this legislation for legally transferring decision making to another person. The right choice depends on a variety of factors. The courts will always try to maximize the autonomy, safety and quality of life for those who need help making personal and financial decisions.
What is capacity?
Legally speaking, capacity refers to an adult’s ability to understand information relevant in making a decision and to appreciate the reasonably foreseeable consequences of
- a decision, and
- failing to make a decision.
For an application under the Adult Guardianship and Trusteeship Act, an adult must undergo a capacity assessment by a family doctor or another qualified capacity assessor. However, it is essential to note that the issue of capacity (whether the adult has it or not), is a legal decision ultimately determined by the court.
This option is right for an adult who is capable of making their own decisions, but from time to time, they need someone – a “supporter” – to help them make non-financial decisions. A supporter has the legal authority to access some of the adult’s personal information, such as medical records, and to assist the adult in thinking through decisions. In this situation, the legal authority to make decisions still rests with the adult.
If an adult struggles with making decisions on their own, they may be vulnerable. When you become a co-decision-maker, you receive the authority to help the adult make personal decisions. A co-decision maker can help an adult with personal, non-financial decisions. In this situation, the adult will need to work through decisions with the appointed co-decision maker; however, the adult will still have the final say on all decisions.
Despite the flexibility of the Adult Guardianship and Trusteeship Act, there are many instances where an adult simply needs more assistance than what co-decision making or supported decision making can afford. If an adult has lost (or never had) the legal capacity to make personal decisions for themselves, they are vulnerable and may need a guardian. If the adult does not have a Personal Directive in place, a guardian can be appointed by court order to make personal, non-financial decisions, regarding some, or all, of the following:
- Living arrangements
- Social activities
- Legal proceedings not primarily related to financial matters
- Any other personal matter the court considers necessary
A temporary guardianship order may be granted in urgent cases where not making a personal decision will cause immediate danger of death or serious physical or mental harm to the adult.
Similarly, if an adult has lost the capacity to make their own financial decisions, they are vulnerable and may need a trustee. If the adult does not have a Power of Attorney, a trustee can be appointed by court order to make financial decisions for the adult.
A temporary trusteeship order may be granted in urgent cases where the adult is in immediate danger of suffering serious financial loss.
How We Can Help You
If you believe a family member or loved one is vulnerable due to an impairment of their ability to make personal and financial decisions, you should do something. There is much support available in the community to assist you and your loved one through this process. If you have questions about any of the legal issues surrounding the Adult Guardianship and Trusteeship Act or substituted decision making, our experienced legal team is standing by to answer any questions you may have. We are available for consultations by telephone, video conference or email. Contact us at (780) 539-3710 or www.grandeprairielaw.ca. Give us a call today!