Dependent Adults Act/Guardianship
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My elderly father is having more and more difficulty in managing his affairs and living independently. I would like to take over his banking, bill paying and so on for him. What should I do?
In Alberta, there is a provincial law called the Dependent Adults Act. This law is meant to help people in your situation and that of your father. It allows an interested person to apply for a court order giving guardianship of a dependent adult to the person applying. An "interested person" is defined as meaning "any person who is concerned for the welfare of the person in respect of whom a guardianship order or trusteeship order is sought or has been obtained". Other interested persons could be the Public Trustee or the Public Guardian, both appointed civil servants with a mandate to apply when necessary to protect dependent persons.
When will the courts make such an order?
The court will make a guardianship order when it has been satisfied by the evidence that the person (such as your father) named as needing a guardian is an adult who has been repeatedly or continuously unable to care for him/herself and to make reasonable judgments about matters relating to his person. The court will only make the order if it will be in the best interests of the dependent adult and will result in substantial benefit to that person.
What is the difference between a guardian and a trustee?
A guardian is a person who is appointed to make decisions about the dependent adult as a person whereas the trustee is appointed to look after the financial affairs of the dependent adult. Most often, a joint appointment is made by the court order, in other words, the same person is appointed by the same order to be both guardian and trustee.
What sort of decisions does a guardian make about a dependent adult?
When appointing a guardian the court will specify which of the following matters will be decisions for the guardian to make:
- where the dependent adult is to live, either temporarily or permanently;
- with whom the dependent adult will live and associate;
- if the dependent adult should engage in social activities and the nature and extent of such activities;
- if the dependent adult should work, and if so, the nature or type of work and for whom;
- if there should be participation in educational, vocational, or other training;
- if the dependent adult should apply for any licence, permit, or other approval;
- whether to start or settle any legal proceedings that do not relate to the estate of the dependent adult;
- to consent to any health care that is in the best interests of the dependent adult;
- to make normal day-to-day decisions on behalf of the dependent adult, including matters of diet and dress;
- any other matters allowed by the court and required by the guardian to take proper care of the dependent adult.
What is covered by "health care"?
Health care may include decisions about
- any examination, diagnosis, procedure, or treatment to prevent any disease or ailment;
- any procedure undertaken for the purpose of preventing pregnancy;
- any procedure undertaken for the purpose of an examination or a diagnosis;
- any medical, surgical, obstetrical, or dental treatment;
- anything necessarily connected to any of these medical matters.
Who will the court appoint as a guardian of a dependent adult?
The court will appoint any person who agrees to act as guardian and who the court is satisfied will act in the best interests of the dependent adult. The potential guardian must not be in a position where there will be a conflict between his or her interests and those of the dependent adult. He or she must also be a suitable person who is able to act and is a resident of Alberta. Usually, a close family member is appointed. In fact, the act specifically states that a person should not be regarded as being in a position where his or her interests might collide with those of the dependent adult only because he or she is a potential beneficiary or a relative of the dependent adult.
What court do I apply to for a guardianship/trusteeship order?
In Alberta, you apply to the Surrogate Court. You make an application by a document called an Originating Notice of Motion. It needs to be accompanied by sworn statements called affidavits. There are a number of requirements about this sort of application, it is an excellent idea to hire a lawyer to see you through this process. You may also obtain help and information by calling the Clerk of the Surrogate Court at the courthouse in or nearest to your community.
What sort of information will I have to provide in the affidavits?
The Dependent Adults Act specifically states that no application shall be made for a guardianship order unless it is accompanied by a report from a physician or a psychologist. The doctor of the proposed dependent adult will probably have experience with these reports and will be able to provide you with the necessary report. It will contain a description of the health, both mental and physical, of the dependent adult, outline areas of difficulty and concern, with concrete examples from the history of the person. It will also give an opinion from the doctor about the necessity of such an order. In addition, the court must see a written consent from the person proposed as the guardian.
Notice of the application must be given at least 10 days before the date of the hearing to
- the proposed dependent adult;
- the nearest relative to the dependent adult living in Canada;
- if the nearest relative is the applicant, to the next nearest relative;
- the person proposed as guardian, if he or she is not the applicant;
- the head of the institution where the dependent adult is living, if he or she is in an institution;
- the Public Guardian, if he or she is not the applicant;
- the attorney under an enduring power of attorney, if there is one and the attorney is not also the applicant;
- any trustee of the dependent adult, if there is one and he or she is not the applicant;
- an agent named in a personal directive;
- any other person that the court may direct.
What will happen at the court hearing?
You or your lawyer will have filed all the necessary papers with the Surrogate Court and a court hearing date will have been set. The Clerk of the Surrogate Court will have checked the application papers to make sure that nothing is missing. You must have served all the people listed in Question 8 at least 10 days before the hearing date. You attend court on the selected date. A judge will preside over the hearing in a courtroom. Anyone served with a notice of the application or anyone else the court agrees to hear can appear and make representations.
The judge will probably have read through your application prior to appearing in court and will be generally familiar with the circumstances. The judge must be satisfied that the proposed dependent adult will substantially benefit from the appointment of a guardian and that it would be in his or her best interests. The judge will ask whatever questions are necessary to be satisfied about this. If the judge has any doubts or reservations, he or she may ask that a report be prepared setting out the physical, mental, social, vocational, residential, educational or other needs both present and future of the proposed dependent adult and generally the ability to care for him/herself and make reasonable judgments for him/herself.
Who can be at the hearing and who can speak to the judge?
Any of the people who were served with notice of the application (please see the list in Question 8) and any other person who the court agrees to hear may be present and may speak to the judge about the proposed order. The judge may require the proposed guardian to attend court and answer questions so that the judge can be sure that he or she is in fact a suitable person, a resident in Alberta, able to act in the best interests of the dependent adult, and not in a position of a conflict of interest.
Who are the "nearest relatives"?
There is a list of relatives in the Dependent Adults Act. They are in order of precedence:
- husband or wife;
- son or daughter;
- father or mother;
- brother or sister;
- grandfather or grandmother;
- grandson or granddaughter;
- uncle or aunt;
- nephew or niece.
Generally, in each class, the oldest person (e.g., the oldest child in a family) will take precedence.
What happens if an order is granted?
The clerk of the court present in the courtroom will make a notice of the judge's decision and often the lawyer representing the proposed guardian will already have prepared an order for the judge's signature. The judge may then sign the order immediately. It is then filed with the Surrogate Court clerk. All such orders must be reviewed from time to time. The maximum time an order will be given for is 6 years and the court may specify a shorter time for review and also who must apply for the review (generally the named guardian).
Note that the Act also specifically says that the dependent adult or any interested person on his behalf may apply to the court at any time for a review of the guardianship order.
What can I do if there is an emergency before I can make an application on behalf of my parent?
There is a provision in the Dependent Adults Act to deal with an incapacitated adult who needs medical or dental treatment. If an adult is incapable of giving consent to medical, obstetrical, surgical or dental treatment because of mental or physical disability, and in the written opinion of two doctors, or in the case of dental treatment, two dentists, is in need of such treatment, then the treatment may proceed without the person's consent. The treatment must be in the best interests of the incapacitated person and done in the manner and to the extent that is reasonably necessary. If the physician or dentist knows that in the past the adult did not agree to such a treatment they cannot carry out the procedure.
The emergency provision will not apply if there is a guardian appointed for the adult with the power to consent to health care for the adult, or if the adult has made a personal directive relating to the treatment which gives clear and relevant instructions and designates an agent to give consent.
Who is the Public Guardian and when does he get involved in these applications?
The Public Guardian is a pubic servant appointed under the Public Service Act. He acts on behalf of adults in need of a guardian when there is no other person who is willing, able or suitable to either make the application or act as guardian. The Public Guardian may make the application himself to be appointed. In addition, the judge of the Surrogate Court hearing an application may, after notice to the Public Guardian, appoint him as the guardian, if the judge is not satisfied as to the suitibility of the person making the application.
Note that the Public Guardian is one of the people who must be served by anyone making an application for a guardianship order. If you decide to bring an application on behalf of your father, you must serve the Office of the Public Guardian. While there is only one person who is the Public Guardian, he has a sizable staff to assist in this work and many Albertans at any given time will have their affairs managed through this office.
My father has Alzheimer Disease which has lately become worse. I would like to be appointed as guardian immediately. Can I apply on an emergency basis without getting a report from a doctor?
Yes. If the following conditions apply, this will be possible:
- there is immediate danger of death or serious harm to the physical or mental health of an adult and
- there is a need for someone to make decisions to prevent the danger and
- it is not possible or practical to obtain a report from a doctor before the danger is likely to occur and
- it is not possible or practical to get authority to act for the adult under any other legislation.
If an order is made on an emergency basis it will be subject to review by the court within 90 days.
More Information
This page was last updated in May, 2000.
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