Guardianship applies when an adult has no capacity to make decisions on personal matters. A person who is the subject of a Guardianship Order is called a “Represented Adult”. The person authorized to make personal decisions for the Represented Adult is called the “Guardian.” A Guardian, once appointed by the Court, has the legal responsibility to make personal decisions for the Represented Adult.
This page has answers to the following questions:
Who can be a Guardian?
A Guardian must be over the age of 18. It is not necessary that the guardian live in Alberta, but they should be in regular contact with the proposed Represented Adult and have a good understanding of the adult’s values and beliefs. Guardians must also consent to the job.
Usually a family member or friend applies for Guardianship. If there is no other individual willing, able and suitable to act, the Public Guardian may be appointed. Before that can occur, however, the Public Guardian must be given both notice and a reasonable opportunity to make representations to the court
What kinds of decisions can be covered by Guardianship?
Depending upon the adult’s needs, and areas where their capacity is lacking, areas of decision-making authority this can include some or all of the following areas:
- health care;
- where and with whom the adult can live;
- whom the adult may associate with;
- social activities, educational or vocational training;
- employment; and
- any legal (non-financial) matters.
How can I obtain Guardianship for my loved one?
The decision to grant Guardianship 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 court order, without having to appear in court. With respect to Guardianship, 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 guardianship application package is available through the Office of the Public Guardian. It includes a number of forms including a Guardianship 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 Guardian can provide a list of capacity assessors. Once completed, the applicant must submit the package to the Office of the Public Guardian
What is a “Capacity Assessment Form” and what is involved in completing one?
In order to obtain a Guardianship Order, the proposed Represented Adult must 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 Guardianship 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 determining Guardianship, what does the Court consider?
For the Court to grant a Guardianship Order, the Court must find that the adult is incapacitated. In addition, the Court must be satisfied that less intrusive and less restrictive measures 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 Guardian would be in the best interests of the adult.
In deciding whether it is in the Represented Adult’s best interests to have a Guardianship Order, the Court must consider:
- the Capacity Assessment Report;
- the Review Officer’s report;
- the views of the adult;
- the adult’s Personal Directive (if there is one);
- the adult Support-Decision-Making Authorization (if there is one);
- the adult’s Co-Decision-Making Order (if there is one);
- whether the personal matters about which the adult lacks capacity are likely to expose the assisted adult to harm; and
- whether the benefits of a Guardianship Order outweigh the risks, if any, to the adult of having a Guardian.
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 cannot order a Guardianship order for a personal matter for which a Personal Directive is in effect.
What are the responsibilities of a Guardian?
The Guardian has been granted legal authority to make decisions on behalf of the Represented Adult. Guardians are expected to make decisions in the adult’s best interests and according to their beliefs, values and wishes. However, the Represented Adult should be included, to whatever extent possible, by the Guardian in the decision-making process.
The Guardian must act, diligently, in good faith, and in the Represented Adult’s best interests. In addition, a Guardian must keep the Represented Adult informed of decisions made by the Guardian and must keep a record of decisions.
A Guardian can apply to the court for advice and direction.
Can a Guardianship Order be reviewed?
Yes. Although there is no generally required review period a review of a Guardianship 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 Guardian 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 Guardianship Orders are also routed through the Review Officer.
How can a Guardianship Order end?
A Guardianship Order remains operative until it is terminated by a court. For example: when a new Guardian is appointed (because the previous one is no longer able or willing to act, or if a court determines that the Guardian 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 Guardianship Order.
What is Temporary Guardianship?
If the Court is satisfied that there is evidence that an adult lacks capacity to make a decision on a personal matter and the adult is in immediate danger of death or serious physical or mental harm, the Court can grant a Guardianship 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 Guardianship?
For more information on Guardianship, 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.