Guardianship and Trusteeship
Effective October 31, 2009, a new Act came into force governing the Guardianship and Trusteeship of dependent adults (now known as “Represented Adults”). The legislation is now called the Adult Guardianship and Trusteeship Act (AGTA), and it has significantly changed the application process and the role of those assisting Represented Adults. All new applications and review applications must be made under the new rules using the new forms.
Below is an overview of the new rules. This summary is not intended to be a comprehensive description of the Guardianship and Trusteeship Act, nor is it intended to provide legal advice. If you have any questions about the changes or the new application process, please feel free to call our office.
Previously, the Adult was deemed to be either capable, or not capable of making their own personal decisions; in other words “all or nothing.” If the Adult was deemed incapable, a Guardian had to be appointed through complex Court proceedings. The new AGTA gives four options regarding personal decision making, intended to more closely reflect the individual’s needs. The first two options do not require a Court Order. The options are described as follows:
Supported Decision Making
If the Adult has capacity to make decisions but sometimes needs some help, the Adult can complete an Authorization electing a person to be their “Supporter”. This does not require a Court application. In this instance the Adult is called the “Supported Adult”. The Supporter is then allowed to have access to personal information, such as medical records, to assist the Supported Adult in making decisions. The Supporter’s role is to assist the Supported Adult with making and communicating the Supported Adult’s decisions. The Supporter should not make decisions for the Supported Adult.
Specific Decision Making
If the Adult has been assessed by a health care provider and deemed incapable of making specific decisions or incapable of making decisions for a certain period of time (for example, while recovering from a stroke), the health care provider can choose a relative of the Adult to make specific decisions on behalf of the Adult. In this instance, the person chosen is called the “Specific Decision Maker”. There are definite restrictions on the type of decisions the Specific Decision Maker is allowed to make, which restrictions can be found in the Act or by contacting our office or the Office of the Public Guardian.
Co-Decision Making
If the Adult has been assessed by a trained Capacity Assessor and found to have significantly impaired decision making ability, but yet can still make decisions with the appropriate guidance and support from another person, an application to the Court for a Co-Decision-Making Order can be made. In this instance, the Adult is called the “Assisted Adult” and the appointed person is called the “Co-Decision-Maker”. The Co-Decision-Maker’s role is to provide the guidance and support the Assisted Adult needs in order to make decisions. Once the Assisted Adult makes the decision, the Co-Decision-Maker must do everything necessary to give effect to that decision unless it is likely to cause harm to the Assisted Adult.
Guardianship
If the Adult is assessed by an approved Capacity Assessor or a physician and found to lack capacity to make decisions entirely, an application to the Court for a Guardianship Order can be made. In this case, the Adult is called the “Represented Adult” and the appointed person is called the “Guardian”. A Guardian has the authority to make decisions for the Represented Adult in all personal matters the Court Order stipulates.
The process for applying to the Court has changed significantly. First, a Capacity Assessment must be conducted by an accredited Assessor, a physician or a psychologist. The documents and required forms, which can be found on the Public Guardian’s website, are compiled and then submitted to a Review Officer. The Review Officer is appointed by the Minister of Seniors and Community Supports and works within the Office of the Public Guardian. In the past, applications were submitted to the Clerk of the Court and then the applicant, or the applicant’s lawyer, was responsible for serving (giving copies to) the required parties. Now, the Review Officer takes care of reviewing the application, serving the application, and forwarding the application on to the Court with their report.
Trusteeship of Represented Adults has not undergone as drastic a change; however, the forms are quite different. Two new items to be aware of are the requirement of the applicant to submit a Trusteeship Plan with the application, and the ability for the Represented Adult to operate his or her own account that the Trustee does not have to account for. The Trusteeship Plan is an outline of what assets, expenses and liabilities the Adult has and what the proposed Trustee plans to do with those assets, liabilities and expenses. In the Trusteeship Plan, the proposed Trustee can request that the Represented Adult be allowed to have a self operated account, with a maximum monthly balance suitable to the size of the Represented Adult’s estate. This self operated account can be used for whatever the Represented Adult wishes and does not have to be accounted for by the Trustee.
The most significant change to the Guardianship and Trusteeship of Adults is that once an Order is granted under the new rules, it does not necessarily have to be reviewed until a new person has to be appointed. Trustees still have to maintain detailed records of their handling of the Represented Adult’s estate, but are no longer required to bring a Court application every few years. Likewise, Guardians must keep records of their decisions, but are not required to bring a Court application every six years. The Court decides whether a date for review should be set at all. If the Court decides not to set a date for review, then the Order only has to be reviewed when someone requests it or when there is a change in the circumstances or capacity of the Represented Adult.
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