Trusteeship applies when an adult no longer has capacity to make a decision on financial matters. A person who is the subject of a Trusteeship Order is called a “Represented Adult”. The person authorized to make personal decisions for the Represented Adult is called the “Trustee.” A Trustee, once appointed by the Court, has the legal responsibility to make financial decisions for the Represented Adult.
This page has answers to the following questions.
Who can be a Trustee?
A Trustee must be at least 18 years of age. They must also consent to the job, and they must satisfy the Court that s/he is suitable and will act in the best interests of the adult. Usually the Trustee is a family member or friend, but the Office of the Public Trustee can be appointed as a last resort. Before accepting this role, however, the Public Trustee has a duty to inquire into the allegation that an adult is in need of trusteeship (this allegation must be made in writing) and it must be satisfied that no one else is likely to apply to become a Trustee.
A Trustee does not need to be a resident of Alberta, but a non-resident will have to provide a bond or other security, unless the Court removes with this requirement.
What kinds of decisions can be covered by Trusteeship?
Trusteeship applies when as adult has no capacity to make a decision on financial matters. A person who is the subject of a Trusteeship Order is called a “Represented Adult”. The person authorized to make financial decisions for the represented adult is called the “Trustee.” A Trustee, appointed by the Court, has the legal responsibility to make financial decisions for the Represented Adult.
How can I obtain Trusteeship for my loved one?
The decision to grant Trusteeship is made by the Court. However, this does not mean that a court appearance will necessarily be required. Often, the process can be complete by what is known as a desk application.
A “desk-application” is a streamlined process for obtaining a court order, without having to appear in court. With respect to Trusteeship, this means that in straightforward cases where there is nothing to be argued, the Order can be obtained simply by sending in the appropriate paperwork to a Review Officer at the Office of the Public Guardian. The Review Officer then completes a separate report and sends the package to the Court for approval. If the Court is satisfied with the paperwork, the Court can then give the requested Order. If, however, the Court or other interested party requests a court hearing, such a hearing can still occur (at which point the application is no longer a “desk” process).
The Trusteeship application package is available through the Office of the Public Trustee (see our Resources page for contact information). It includes a number of forms including a Trusteeship Plan and a Capacity Assessment Report. The proposed Represented Adult’s capacity is assessed by a physician, psychologist or other health care professional designated as a Capacity Assessor. The Office of the Public Trustee can provide a list of capacity assessors. Once completed, the applicant must submit the package to the Office of the Public Trustee.
What is a “Capacity Assessment Form” and what is involved in completing one?
In order to obtain a Trusteeship Order, the proposed Represented Adult take part in a capacity assessment and be found to be incapacitated. This assessment process is conducted in a standardized manner. It includes a cognitive and functional assessment.
The capacity assessment process must be completed by a doctor, psychologist or other health care professional specifically trained to be a Capacity Assessor. The Office of the Public Guardian has a list of qualified and trained capacity assessors.
Who will be told about the Trusteeship application?
The Review Officer must notify all members of the prescribed family class, who live in Canada. This includes:
- the spouse or the adult interdependent partner of the adult;
- the parents of the adult;
- all children of the adult who are 18 years of age or older; and
- all the brothers and sisters of the adult who are 18 years of age or older.
However, it is possible to apply to dispense with notice to someone in the class. There must, however, be an acceptable reason. For example: if a person would not understand the application (such as a sibling who has dementia), or there has been no contact between the adult and that person for many years. It is the Court who decides whether the notice can be dispensed with.
When considering Trusteeship, what does the Court consider?
For the Court to grant a Trusteeship Order, the Court must find that the adult is incapacitated. In addition, the Court must be satisfied that less intrusive and less restrictive measures (such as in informal trusteeship under the AISH legislation) have been considered, or implemented, but either would not, or did not, meet the needs of the adult. The Court must also be satisfied that appointing a Trustee would be in the best interests of the adult.
In deciding about the Represented Adult’s best interests, the Court must consider:
- the Capacity Assessment Report;
- the Review Officer’s report;
- the views of the adult;
- the adult’s Enduring Power of Attorney (if there is one);
- whether the financial matters about which the adult lacks capacity are likely to expose the assisted adult to harm
- whether it would be in the adult’s best interests to impose any limits on the power of the Trustee; and
- whether the benefits of a Trusteeship Order outweigh the risks, if any, to the adult of having a Trustee.
The Court must also consider whether any reviews will be required. This is because there is no required review period in the AGTA. The Court decides if a review is required. If yes, the court must specifically include the review provisions in the order itself. This consideration is especially important if the Capacity Assessment Report indicated that the adult’s capacity is likely to improve.
The Court may appoint multiple trustees, who act jointly unless the order provides otherwise.
The Court cannot order a Trusteeship order for a financial matter for which an Enduring Power of Attorney is in effect.
What are the responsibilities of a Trustee?
A Trustee can do almost everything in relation to financial matters that the Represented Adult would be able to do if he/she had capacity.
The more specific duties of a Trustee include:
- keeping the Represented Adult’s property of the adult separate form his/her own;
- maintaining accounts (which includes an inventory as at the date of the trustee’s appointment and a complete record of all transactions affecting the property administered);
- investing the Represented Adult’s property with a view to earning a reasonable return without taking undue risk (but always subject to the Trusteeship Plan);
- generally exercising the care, skill and diligence that a reasonably prudent person would exercise in managing their own financial affairs;
- always acting in best interests of the Represented Adult and must act in accordance with the Trusteeship Order and the Trusteeship Plan, as approved by the Court.
However, there a few things a Trustee cannot do. For example, a Trustee cannot:
- sell, transfer or encumber real property or purpose real property except as specifically allowed in an Order;
- consent to disposition of adult’s homestead pursuant to Dower Act unless the Order specifically allows;
- grant a Power of Attorney on behalf of the Represented Adult; and
- write a new Will or other testamentary disposition (such as a beneficiary form for life insurance) on behalf of the Represented Adult.
Can a Trusteeship Order be reviewed?
Yes. Although there is no generally required review period, a review of a Trusteeship Order is mandatory if:
- the order itself specifies a review date;
- there has been a significant change in the Represented Adult for which a variation or termination of the order would be in the best interests of the Represented Adult; or
- there is a change of circumstance in the Trustee that warrants a review of the order.
An interested person may apply for a review at any time. If the Represented Adult’s capacity is in issue, the person applying must include a recent Capacity Assessment Report.
Applications for reviews of Trusteeship Orders are also routed through the Review Officer.
How can a Trusteeship Order end?
A Trusteeship Order remains operative until it is terminated by a court. For example: when a new Trustee is appointed (because the previous one is no longer able or willing to act, of if a court determines that the Trustee in no longer suitable), or if the Represented Adult regains capacity. The death of the Represented Adult will also result in the end of the Trusteeship Order.
What is Temporary Trusteeship?
If the Court is satisfied that there is evidence that an adult lacks capacity to make a decision on a financial matter and the adult is in immediate danger of suffering serious financial loss, the Court can grant a Trusteeship Order on an urgent basis for up to 90 days. To do so, the Court can change any requirements in the Act or Regulations with regard to filing documents, service and evidence if urgency so warrants. Such a temporary order can, upon review, be extended for up to 6 months.
Where can I get more information about Trusteeship?
For more information on the AGTA, please see this booklet of over 100 Frequently asked Questions about the Alberta Adult Guardianship and Trusteeship Act.
The above information relates to Alberta law only. For links to information on similar laws in other provinces, please see our page of Additional Resources.