Miserable

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When does a man of my age get the opportunity to live his own life. Let me explain. Currently I am being forced against my will not physically but financially to stay in this small town with the only option visiting a small city which I hate because of the people that in that city. It so small infact the you constantly run to these "losers" all the time because there is only 3 malls in the area both of which are located quite close together. In fact so close that you walk between. I want to be able leave this town and said small city in order to make life a happy one. I want to learn karate, I want to find a reading group or something similar, I want to go be around people of my own age that are not just interested in playing that god damn game called Dota. I want to invest my 3 month holidays and in fact a few more in order to complete this transfer to a uni of my preference in order to the presue the life time goal of becoming a doctor. You wonder why I am so angry and bitter well here the problem. All this combine also places me in a bad position which not only makes my personal life when it comes things not involving the opposite sex but the later as well. I am sick of this situation and now they are threatening me (my parents and this therpist ) with locking me up in an asylum and forcing to take drugs of some sort that also contrubted to my depression. I need help getting out. My parents still control my assets (my bank accounts) and sometimes my mother (dips into my accounts for own personal desires). I've had enough I want out now. Please someone help me.

How is the Assessment of Capacity different under the AGTA?
The AGTA clarifies and standardizes issues surrounding capacity assessment and allows for a range of supportive and substitute decision-making options. These options address the reality that adults have different levels of decision-making ability. The new AGTA continuum avoids an “all or nothing” approach to mental capacity and substitute decision-making in relation to personal matters. The continuum allows adults to receive assistance according to their needs and to maintain as much autonomy as possible.

The continuum includes the following options, from least to most intrusive:

•Supported decision-making authorizations: These authorizations will be regulated form and allow an adult with capacity to designate a “supporter” to help them make decisions in personal matters. The authorization will allow the supporter to access personal and health information to assist the adult in making the decision. This provision will benefit many people including those with disabilities.

•Co-decision-making orders for personal matters: Co-decision-making orders come into play if an adult is assessed as having a significant impairment, but can still make decisions with assistance. A co-decision-making order is a Court Order and the adult must agree to it. This provision will be useful for families where there is a trusting relationship; for example, a wife assisting her husband who is in the early stages of dementia.

•Specific decision-making provisions: This provision comes into play when an adult has no personal directive or guardian. It covers situations where a health professional believes an adult cannot provide informed consent on a decision related to health care or temporary admission to a facility. In these circumstances a health professional can select a relative of the adult to make the decision or the Office of the Public Guardian as a last resort. Currently in Alberta, there is no legal mechanism to cover situations where an adult temporarily lacks capacity to make these types of decisions and the only option available to families and health professionals is guardianship.

•Temporary guardianship and trusteeship orders: These provisions apply to situations where an adult is believed to lack capacity and is in imminent danger of death or serious harm or financial loss if someone does not make a decision to prevent the death, harm or financial loss.

•Guardianship and trusteeship orders: These options remain available for adults assessed as incapable, but the application process allows for improved screening and information provision for prospective guardians and trustees. The new process also ensures the adult’s views are included in a report to the Court, if possible. The AGTA also provides the Court with additional guidance when granting an order. For example, the Court must consider whether less intrusive options could meet the person’s needs.

Law 234

16th class outline

• Any questions from last class?

• What we will discuss this class: the new Adult Guardianship & Trusteeship Act

• Imagine if John Barnes had not done an Enduring Power of Attorney and he now lacks mental capacity to deal with his finances or he did not do a Personal Directive and now lacks mental capacity to make personal decisions, then John’s family will be required to make an application to the Court of Queen’s Bench to appoint someone to be John’s trustee, to take care of his financial matters and John’s guardian, to deal with his personal matters.

(Note that this costly and time consuming court application could have been avoided if John had made an Enduring Power of Attorney and a Personal Directive.)

• These types of court applications are dealt with under the Adult Guardianship & Trusteeship Act (the AGTA) . The person receiving assistance is called the “represented adult”.

• When making these applications it is important to understand that the application can be for only a trustee or only a guardian or for both a trustee and a guardian, depending on the needs of the represented adult. The same person can be both a trustee and a guardian of the represented adult.

• A trustee deals with the represented person’s financial matters such as paying the bills, transferring property, settling claims for debts or collecting money owed to the represented adult. This financial power will end when the represented adult dies and their personal representative takes over the estate.

• A guardian deals with the represented adult’s day to day personal matters such as decisions on where the person will live, who they will associate with and the consent to or the refusal of medical treatments. This power will end when the represented adult dies.


• Procedure for an application to appoint a Trustee or Guardian or both is set out in the AGTA.

• Pursuant to section 26 and section 46 any “interested person” can make an application to the Court of Queen’s Bench for an order appointing a guardian (section 26) or a trustee (section 46) for an adult person.

• According to sections 26 and 46, an application for the appointment of a guardian or trustee must be accompanied by several documents including the following:

1. a capacity assessment report – this report must comply with the regulations and can be completed by a physician, psychologist, registered nurse, occupational therapist or social worker. The last three professionals need special training before they are qualified to do capacity assessments. One of the principles of the AGTA is the assumption of capacity so the report needs to demonstrate that the person lacks capacity. These reports can cost between $500-700. There is a copy of the form used for these reports on Blackboard under Course Materials.

2. A guardianship or trusteeship plan. Form 32 on page 160 of the regulations for the AGTA is the form for the guardianship plan and Form 34 on page 162 is the form for the trusteeship plan. (A copy of the regulations is on Blackboard). A trustee is also required to provide an inventory of the represented person’s assets and debts (Form 37) or an undertaking that this inventory will be filed within 6 months of the court order.

3. Forms as prescribed by the regulations, which include:

i. Application for appointment of guardianship or trusteeship – Form 14 on page 112 of the regulations (this application must be personally served on the adult who is the subject of the application);

ii. Affidavit in support of the application for guardianship or trusteeship-Form 15 on page 119 of the regulations;

iii. Consent and Undertaking of the proposed guardian - Form 24 on page 154. (Form 26 is the consent of the alternate guardian);

iv. Consent and Undertaking of the proposed trustee - Form 27 on page 156. (Form 29 is the consent of the alternate trustee);


v. List of two personal references to be provided by the proposed guardian or trustee – Form 30 on page 158. Proposed guardians and trustees must also provide a police check and a proposed trustee must also provide a credit check;

vi. Draft order for guardianship and/or trusteeship;

vii. Court filing fee.


• What is the test for determining if a person needs a guardian or trustee?

Section 26(6) is the test for the need for a guardian and Section 46(5) is the test for the need for a trustee. These sections state that the court:

i. can appoint a guardian when it is satisfied that the adult does not have the capacity to make decisions about personal matters,

ii. can appoint a trustee when it is satisfied that the adult lacks capacity to make decisions about any and all financial matters,

iii. can appoint a guardian or trustee if it is in the best interests of the person,

iv. can appoint a guardian or trustee if a less intrusive measure would not be effective to meet the needs of the adult (we will examine these less intrusive measures in another class).

• Who is eligible to be a Guardian or Trustee?

According to sections 28 and 49 it can be:

1. any person who consents to act in this role,

2. who the court is satisfied will act in the best interests of the represented adult, and

3. who is a suitable person to be appointed. This suitability is based on such things as the views of the represented adult, the relationship between the represented adult and proposed guardian or trustee, the ability of the proposed guardian or trustee, whether their interests will conflict with the interests of the represented adult.

Alternate guardians or trustees can be appointed in case the original person is unable or unwilling to continue to act.

Both the Public Guardian and the Public Trustee can be appointed in certain circumstances.

• How long will the order for a trustee or guardianship last?

The order will state how many years it will last before it needs to be reviewed. In addition the AGTA states that any interested person, the guardian, trustee or the represented adult can apply at any time for a review of the order by the court. A recent capacity assessment report will be filed with the application for a review to ascertain the present capacity of the represented adult. Forms 19-23 are the documents for this review.
Any interested person can apply for an order requiring the trustee to provide an account for examination and approval by the court.

The Trustee is required to provide an inventory of the represented adult’s assets and debts within six months of the court granting the trusteeship order.

• What powers will the guardian or trustee have?

The court order will list the powers granted to the guardian and can include all or some of the powers listed in section 33(2) of the AGTA. Take a look at this section and the order for guardianship for a list of powers, which is Form 18 on page 126 of the regulations.

The court order will list the powers granted to the trustee and can include all or some of the powers listed in section 55. Take a look at this section and the order for trusteeship for a list of powers, which is Form 18 on page 126 of the regulations.

• Who pays for the application?

The cost for the application can be awarded against:

1. the Alberta government, or

2. the applicant, or

3. the represented adult or their estate.

The affidavit in support of the application must state that the applicant is requesting that the government assist with the costs and provide information on the assets and debts of the represented adult.


• How to proceed with an application for guardianship or trusteeship

If a lawyer is hired for this matter a legal assistant will complete all the necessary documents in support of the application. The proposed guardian and trustee must provide considerable information for the numerous documents needed for this application.

Pursuant to the AGTA all the documents required for the application are submitted to a “review officer” who works for the Public Guardians office. There is an office of the Public Guardian in Red Deer in the Provincial Building downtown.

The review officer will review the documents and advise the law office of any changes required or if documents are missing.

Once all documents are in place the review officer will arrange to have the represented adult personally served with a copy of all of the documents as well as a blank Request for Hearing form.

The review officer will also mail a copy of the application form and a blank Request for Hearing form to the represented adult’s spouse, children, parents and siblings. These relatives can request that the review officer provide them with copies of all of the documents in support of the application except the capacity assessment report and the names of the proposed guardian or trustee’s references.

The represented adult and their relatives will have 20 days to complete the Request for Hearing form if they want a court hearing to decide this application.

If no Request for Hearing form is sent to the review officer, then the review officer will file all the documents at the Court of Queen’s Bench with a request that this application be dealt with as a “desk application”.

If a Request for Hearing form is completed, then a court date will be set for this matter and the parties will be notified of the court date.

A review officer will also meet with the represented adult to ascertain the views and wishes of the adult respecting the application. The review officer will complete a report that is provided to the court for consideration when deciding if an order should be required.

Once the order is granted, it must be served on the represented adult and the family members that received notice of the application. The order will state the manner of service, such as by ordinary mail.

The Public Guardians office also has Complaints officers. If the Public Guardians office receives a written complaint that a guardian or trustee is failing to comply with the order or taking actions that may cause harm or financial loss, a Complaints officer can investigate this complaint and take action such as making an application for an immediate review of the order.

Next class: we will examine other applications that are available under the AGTA