Dignity for Albertans: The Adult Guardianship and Trusteeship Act

February 19, 2009
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April 20, 2009
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Dignity for Albertans: The Adult Guardianship and Trusteeship Act

In Medicine Hat, as elsewhere in the province, we are living longer.  While there are wonderful benefits to a long life, we also increase the risk of diminishing mental capacity in our golden years.   Many people prepare for this risk by having Enduring Powers of Attorney (or EPAs) and Personal Directives (also called Advanced Health Care Directives) drafted by their lawyer.  These documents address how financial or health/personal decisions will be made in the case where a person loses mental capacity.

Unfortunately, many people who lose capacity do not have an EPA or PD.  In some  cases, a person may be born with a mental disability or become mentally injured in childhood.  Parents can make decisions for these children while they are minors, but their legal authority to do so ends when the child turns 18.  The Adult Guardianship and Trusteeship Act, (or AGTA for short) applies to Albertans who have lost mental capacity and do not have either an EPA or PD.

Prior to the enactment of the AGTA in 2009, a person’s mental capacity was considered an all or nothing proposition; either you had mental capacity or you did not.  The AGTA continues to consider the loss of capacity for financial matters in this manner.  In regards to health or medical decisions however, law makers have recognized that mental capacity for many seniors follows a continuum and diminishes over time   As well, they acknowledge encouraging the involvement of a person in the decision-making process for health and personal matters is important to preserve the independence and dignity of that person.

The AGTA provides a range of options for making health and personal decisions, depending on the degree of mental capacity of the person in question.  Your parent, relative or friend, while mentally capable of making decisions on their own, may want some assistance from you to gather information or to communicate on their behalf.  The Supported Decision-Making Authorization allows the maker to appoint up to 3 people (called supporters)  to access the makers medical or personal information and speak with the government agencies in order to get information to help the person make a decision.

The Co-Decision Making Order moves further across the continuum.  This option increases the level of involvement by including your parent, relative or friend to assist you in making joint decisions.

The Specific Decision-Making Authorization option is available in cases where an immediate health care or temporary residential care decision is required.  A close relative or the Public Guardian can be appointed to make a decision prior to the application to Court for a Guardianship Order.  This will solve the past problem of being unable to make an important health decision right away, while a guardianship application was commenced but not completed.

Another very useful option is the Temporary Guardianship (or Trusteeship) Order.  An order up to 90 days may be granted by the Court to prevent serious health consequences or financial losses.   Examples of when a Temporary Guardianship Order may be granted include situations where a person refuses to take necessary medication or refuses to leave their house to seek medical attention.

The law makers have created a number of forms Albertans can use to complete the process themselves; but the forms appear daunting to many people.  Our firm has made many applications for Guardianship and Trusteeship under the AGTA.  Our experience and good working relationships with the Offices of the Public Guardian and Public Trustee in Medicine Hat, allow us to effectively navigate through the process for our clients.

For more information about the AGTA you can contact the Alberta Seniors and Community Supports website.

Les Scholly
Les Scholly helps you navigate the turning points of life. He is a partner with Pritchard & Co. Law Firm, LLP and member of the Society of Trust and Estate Practitioners (STEP). Contact Les at 403-527-4411 or at lscholly@pritchardandco.com