Capacity and the Adult Guardianship and Trusteeship Act

What is the Adult Guardianship and Trusteeship Act

  • The Adult Guardianship and Trusteeship Act is referred to when an adult may not be able to make decisions on their own about personal matters.
  • Guiding Principles
    • Adult presumed to have capacity until determined otherwise
    • Adult entitled to communicate by any means that enables the Adult to be understood, i.e., difficulty or mode of communication not relevant
    • Autonomy to be presumed with least intrusive/restrictive assistance
    • Best interests to consider wishes expressed while capable and values/beliefs known to have been held by the Adult

What is Capacity?

  • Re: a personal or financial matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of:
    • a decision
    • a failure to make a decision
  • N.B. This is a legal determination, not a medical diagnosis, made on the basis of evidence from the capacity assessment report
  • Potential for conflicting assessments >>> trial

Capacity on a Continuum

  • Independent decision-making
  • Supported decision-making
  • Co-decision making (makes decisions with assistance - adult can consent to this Order)
  • Specific decision-making (where Adult has no PD or Guardian - for medical/dental treatment)
  • Emergency-decision making (e.g., medical treatment where Adult lacks capacity to make a decision)
  • Guardianship, Trusteeship and Protection

Range of Capacity

  • Capable
  • Significantly Impaired (reduced capacity but does not cover the entire spectrum)
  • Incapable Temporarily (e.g., brain injury from which Adult can recover)
  • Incapable Long-term(e.g., mental development impaired such that represented Adult cannot become independent, due to congenital condition or permanent injury)

Guidelines for Capacity Assessments

  • May be conducted only if the need has been established
  • Adult has the right to refuse or to continue with capacity assessment
  • Adult has the right to have a person present to assist adult in feeling comfortable
  • Adult has the right to an interpreter or device to assist in communication

Who can perform a capacity assessment?

Capacity Assessments

  • Form 3
    • Co-decision-making
  • Form 4
    • Guardianship or Trusteeship or both
  • Form 10
    • Temporary admission to or Discharge from a Residential Facility

Desk Applications

  • Guardianship, Trusteeship or both

Review of Order and passing accounts

  • Typically, every two years or as otherwise ordered
    • For a longer period of time, e.g. 5 years
    • Dispensed with altogether
  • Application for passing accounts can be brought by an interested person
  • Fiduciary duty - responsibility to act in utmost good faith (represented Adult is vulnerable)
  • Improper use of funds can result in being personally responsible to reimburse the represented Adult's estate

Complaints

  • Complaints respecting co-decision-makers, Guardians and Trustees
    • Failing to comply with Order
    • Failing to carry out duties
    • Failure is likely to cause physical, mental or financial harm to the Adult
  • Complaints Officer to review and investigate
    • Attempt to resolve or refer to ADR
    • Recommend that PTO apply for Guardianship or temporary protection Order
    • Refer to police service, responsible Minister or Solicitor General