Adult Guardianship & Trusteeship
Adult Guardianship & Trusteeship law deals with the needs of adults who require assistance in making their own day-to-day health or financial decisions. Some adults become incapacitated through accidents, illness or old age. Other scenarios where Adult Guardianship and Trusteeship come into play involve individuals with developmental disabilities who grow into adulthood. In either case, Adult Guardianship & Trusteeship involves an adult who needs to have someone legally assigned to responsibly make decisions concerning their affairs.
The Adult Guardianship and Trusteeship Act empowers the Court of Queen’s Bench to appoint a person as a Guardian of another person if that other person is mentally incapacitated or becomes mentally incapacitated. The guardian is usually a relative or close friend who is familiar with the adult in question. In certain situations, however, there is no close friend or family member and legislation allows for the appointment of the Public Guardian. The Public Guardian is an office of the Provincial Government that only gets involved where there is no family member or other interested party who is appropriate or willing to take on the responsibility of being the guardian of the represented adult.
Once appointed, a Guardian is empowered to make certain decisions on behalf of a represented adult. Depending on the situation, these decisions might include decisions about the adult’s participation in certain activities, consent regarding health care and decisions as to where the represented adult will live.
Guardians cannot make decisions about anything related to financial matters unless they are also appointed as a Trustee of the represented adult. It is fairly typical for a Guardian to also be appointed Trustee of the represented adult.
A Trusteeship concerns the financial matters of an adult who is incapacitated. In the case of an adult who is or becomes incapable of responsibly making their own financial decisions, someone must act as their Trustee.
Trustees are empowered to make financial decisions related to the adult in question. A Trustee’s powers are limited to financial matters only. The roles of a Trustee may involve the signing of contracts, managing apartment and nursing home leases, keeping track of all income and expenses and preparing appropriate tax returns as they are due.
When someone takes on the responsibilities of Adult Trusteeship, it is generally a requirement that they provide an accounting of trust records, from time to time, for Court approval. The frequency of these Court reviews depends on the particulars of each case. In some circumstances, it may be possible to reduce or eliminate this requirement.
Adult Guardianship Orders & Adult Trusteeship Orders
If you or someone you know is interested in becoming an Adult Guardian or an Adult Trustee to handle the affairs of an adult who is incapacitated, you need to apply for an Adult Guardian Order or an Adult Trustee Order.
Guardianship and Trusteeship Disputes
All of a dependent adult’s immediate family members must be notified of an application for Guardianship or Trusteeship . At times, there can be disputes over who is the best family member to act as the Guardian or Trustee for the adult. It can be very helpful to begin these proceedings with frank discussions about who is interested or who has the time and resources to act as the adult’s Guardian or Trustee. Preemptive family discussions can help reduce the risk of disputes during the legal process and avoid costly court applications.
Your Next Steps
Making a Guardianship or Trusteeship application can be daunting. The paperwork is extensive and can require a great deal of time to complete. To begin the process, a Capacity Assessment Report must be obtained for the adult and the contact information of the applicant(s) and the adult’s immediate family should be retrieved.
For a Trusteeship application, the financial records for the adult should be collected. There will be scenarios when this information is not accessible until after the Trusteeship order is obtained but, if possible, it is more efficient to include this information in the initial application.
If you have any questions or require assistance in applying for an Adult Guardianship or Adult Trusteeship Order, please contact one of our lawyers directly. Our lawyers have over 30 years experience working with such matters and can offer you expert advice and service.
We would be happy to discuss the following with you:
- Whether guardianship and/or trusteeship applications may be appropriate or whether less restrictive means of assistance are available;
- Capacity assessments and where to have them done;
- The costs and timelines involved in obtaining a Court Order; and
- Any other questions you may have.