When does this area of law apply?
Adult Guardianship & Trusteeship orders deal with adults who need help in making their own day-to-day health or financial decisions. Adults can become incapacitated through accidents, illness or old age. Adult Guardianship and Trusteeship orders can also be applied for adults with developmental disabilities from birth. In either case, Adult Guardianship & Trusteeship involves an adult who needs to have someone legally assigned to make decisions on their behalf.
The Adult Guardianship and Trusteeship Act allows the Court of Queen’s Bench to appoint a person as the Guardian of an adult who is mentally incapacitated. The guardian is often a relative or close friend who is familiar with the adult’s situation. In certain circumstances, however, there is no close friend or family member to help and the law 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 willing to take on the responsibility of being the guardian of the represented adult.
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 order concerns the financial issues of an adult who is incapacitated. If an adult becomes incapable of responsibly making their own financial decisions, someone must act as their Trustee.
Trustees are permitted to make financial decisions related to the adult in question. A Trustee’s powers are limited to only financial issues. The roles of a Trustee can 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 a requirement that they provide an accounting of trust records, periodically, 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 the frequency of these reviews.
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, this can cause arguments over who is the best family member to act as the Guardian or Trustee for the adult. It is 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.