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?
- A medical doctor (includes psychiatrist)
- A registered psychologist
- Designated Capacity Assessors (someone who has been trained and meets requirements as set out in the Regulations – often social workers, mental health workers, nurses etc.)
- http://humanservices.alberta.ca/guardianship-trusteeship/list-of-capacity-assessors.html
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
- http://humanservices.alberta.ca/guardianship-trusteeship/application-for-new-guardianship.html
- Form 14 – Application
- Form 15 – Affidavit
- Form 16 – Notice of Application
- Form 18 – Order
- Form 32 – Guardianship Plan
- Form 24 – Consent of proposed Guardian
- Form 26 – Consent of proposed Alternate Gdn
- Form 27 – Consent of proposed Trustee
- Form 29 – Consent or proposed Alternate Trs
- Form 30 – Personal References
- Form 34 – Trusteeship Plan
- Form 37 – Inventory
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