The Adult Guardianship and Trusteeship Act (AGTA) is an Alberta law that came into force on October 30, 2009. The AGTA provides a variety of ways for an adult to get help making decisions. Options range from having another person support the adult in making a decision to having another person take over the adult’s decision-making completely. The right choice depends on the adult’s capacity and the decisions made.
There are two kinds of decisions covered by the AGTA: personal matters and financial matters.
A personal matter is any issue, except a financial matter, relating to the person of an adult, including:
- health care;
- where, with whom and under what conditions to live (either permanently or temporarily);
- with whom to associate;
- participation in social activities;
- participation in any educational, vocational or other training;
- employment; and
- any legal proceedings that do not relate primarily to financial matters.
A financial matter is any matter relating to buying, selling, managing or protecting property. Essentially, a financial matter refers to anything you can own (including money).
Which option is right for you?
Help with Personal Decisions
Supported Decision-Making Authorizations: An adult with good capacity can name one to three supporters to help them make decisions about personal matters. There is no need to go to court. The adult must complete a form, called a Supported Decision-Making Authorization. This choice is not available for financial matters.
Co-decision-making orders: Co-decision-making orders are for adults who have some capacity and need help making decisions about personal matters. This is a court order that the assisted adult must agree to. This option is not available for financial matters.3. Specific decision-making: This option is for situations where:
- an adult has no Personal Directive or guardian; and
- a health care provider believes the adult cannot give consent to health care or to being temporarily admitted to or discharged from a residential facility.
In these circumstances, the health care provider can choose a relative of the adult to make the decision. If no relative is available, the Public Guardian can make the decision.
Temporary guardianship orders in urgent cases: This is for situations when an adult has no capacity and is in danger of death or serious harm if someone does not make a decision to prevent that death or harm. A temporary court order is required. This order generally lasts only 90 days. The order can be extended up to 6 months under certain circumstances.
Guardianship orders: This option is for adults who have been assessed as incapable and who do not have a Personal Directive. This court order gives another adult the ability to make personal decisions on behalf of the incapable adult.
Help with Financial Decisions
Temporary trusteeship orders in urgent cases: This is for situations in which an adult has no capacity and is in danger of financial loss if someone does not make a decision to prevent that financial loss. A temporary court order is required. This order generally lasts only 90 days. Under certain circumstances it can be extended up to 6 months.
Trusteeship orders: This option is for adults who have been assessed as incapable and who have not completed an Enduring Power of Attorney. This court order gives another adult the ability to make financial decisions on behalf of the incapable adult.
What if you have an Enduring Power of Attorney or Personal Directive? Does the AGTA still apply?
A Personal Directive must be completed while you have capacity and comes into effect only once you lose capacity.
If you have a Personal Directive:
- you can still get a Supported Decision-Making Authorization or a co-decision-making order for making decisions while you still have good or some capacity; and
- when you lose capacity, a guardianship order should not be required. Instead, the Personal Directive comes into effect and the named Agent can begin to make decisions about personal matters on your behalf.
If you do not have a Personal Directive and then lose capacity, a guardianship order under the AGTA will be necessary.
Enduring Powers of Attorney
An Enduring Power of Attorney must be completed while you have capacity and usually comes into effect once you lose capacity.
If you have completed an Enduring Power of Attorney, and then loses capacity, a trusteeship order should not be required. Instead, the Enduring Power of Attorney comes into effect and the named Attorney can begin to make decisions about financial matters on your behalf.
If you have not completed an Enduring Power of Attorney and then lose capacity, a trusteeship order under the AGTA will be necessary.
For more information on the AGTA and options available for help with decision-making, see CPLEA’s Adult Guardianship and Trusteeship Act booklet.