Dependent Adults Act/Trustees
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What do trustees do? Should I consider this action for my parent?
Often, a parent who needs help with day-to-day decisions about health and housekeeping issues also needs help managing finances. The Dependent Adults Act contains provisions for both guardianship and trusteeship. It is very common for applications to ask for both designations and the same order will then appoint both a guardian and a trustee. They are usually the same person (and usually the same applicant) but they do not have to be the same person. A trustee handles the money and property of the dependent adult.
What powers would I have as trustee for my father, for example?
According to the Alberta Dependent Adults Act, you would have the following powers:
- the right to take possession and control of all the real and personal property of your father;
- the right to manage, handle, administer, sell, dispose of or otherwise deal with the estate just as your father could have done if he were able to make reasonable judgments with respect to his estate.
What does the Act mean by "take control"?
The Act does give the trustee a lot of power. It says that as trustee you may, among other things,
- grant or accept leases of real or personal property for up to three years;
- invest money in investments and deposit money in deposits authorized according to the Trustee Act (another provincial statute);
- perform contracts entered into by the dependent adult;
- draw, accept and endorse promissory notes, bills of exchange, bonds, debentures, coupons and other negotiable instruments;
- sell or dispose of personal property (with certain limitations as to value);
- start, compromise or settle a claim or court action that relates to the estate of the dependent adult.
What information does the court need for this application?
The information required is very similar to that needed for a guardianship order. The judge will want to know:
- Does the person really need a trustee?
- Is it in the best interests of that person to have a trustee appointed?
- Has the person signed an enduring power of attorney in favour of anyone?
- Is the person proposed as trustee an adult; a resident of Alberta; a person who will act in the best interests of the dependent adult; not in a position where his or her interests will conflict with those of the dependent adult; and someone who has consented to act as trustee?
If the judge has any doubts or unanswered questions, he or she has the power to order that a report be prepared on the proposed dependent adult. The report looks at all of the physical, mental, social, vocational, residential, educational or other needs both present and future of the person and generally his or her ability to make reasonable judgments with respect to matters relating to the estate. Also, as a routine part of every application, there must be a report from a physician or psychologist about the condition of the proposed dependent adult.
Who needs to be notified of this application?
The notice requirements are similar to those for an application for guardianship. You must notify
- the proposed dependent adult;
- the nearest relative living in Canada of the proposed dependent adult;
- the person proposed as trustee, if he or she is not the applicant;
- the person in charge of the institution, if the proposed dependent adult is resident in an institution;
- the Public Trustee;
- any attorney under an enduring power of attorney, if he is not the applicant;
- any guardian of the proposed dependent adult;
- an agent specified in any personal directive;
- any other person the court may direct.
Are there other options available if there is no one to take on this responsibility?
The Act stipulates that the Public Trustee or a trust corporation may also be appointed to act. The Public Trustee, like the Public Guardian, is a senior civil servant employed by the provincial government and assisted by a large staff.
What happens after the trustee is appointed?
The newly appointed trustee must, within six months of being appointed, file an inventory of the assets and liabilities of the estate of the dependent adult with the Clerk of the Surrogate Court. The inventory must be sworn to be a true account by the trustee. Then, at least every two years, the trustee must file accounts with the Clerk and apply to the Court for an order passing the accounts. In some circumstances, the Court may approve the accounts without a court hearing and may also allow up to 4 years between accountings. There is no need to notify the Public Trustee of these applications. The new trustee should obtain several certified copies of the order appointing him or her. Various authorities such as the Land Titles Office or banks may want to see or obtain a certified copy. The Clerk of the Surrogate Court will provide certified copies for a small fee.
Who needs to be notified once a trustee is appointed?
You must notify the same people who need to be served with notice of the application in the first place (see Question 5). As a practical matter you should also notify the following people or institutions:
- any financial institutions where the dependent adult has dealings, such as bank accounts, loans, investments or a safety deposit box;
- any government departments providing benefits to the dependent adult such as Old Age Security, Canada Pension Plan payments, the Alberta AISH plan (Assured Income for the Severely Handicapped), or any other provincial benefits plan;
- other programmes providing benefits such as the Workers Compensation Board, the Unemployment Insurance Commission, long term disability insurance plans or private pension plans;
- the institution or residence where the dependent adult lives;
- medical benefit providers such as Alberta Health, Blue Cross and private medical insurance providers, or other provincial medical plans;
- the municipal tax department;
- utility providers such as telephone and cable service companies.
What about banking arrangements and bill payments?
You should open a special bank account for the dependent adult. All payments should be directed to that account and all bills paid out of it. It is extremely important that the money belonging to the dependent adult and the money belonging to the trustee be kept separate at all times! Keep all bank records, statements, receipts and canceled cheques. You may hire someone to help you with bookkeeping and accounting tasks and the payment may be made out of the dependent adult's estate.
What about me? Is the trustee entitled to be paid for services rendered?
Yes, you are entitled to compensation, if the court allows it. You should keep careful records of the work that you do and the amount of time you spend. You are also entitled to your out-of-pocket expenses directly incurred on behalf of the dependent adult.
Are there some things that the trustee shouldn't do?
There are some things the trustee must not do. These include
- making gifts, advances or charitable donations out of the estate;
- taking compensation for your duties as trustee before the court has authorized it;
- purchasing property from the dependent adult;
- making loans to yourself or others unless the loans follow the provisions of the Trustee Act.
Where can I find copies of the Dependent Adults Act?
You can find copies of the Statutes of Alberta in public libraries, courthouse libraries and law school libraries. As well, they are available online from the Queen's Printer at www.qp.gov.ab.ca/catalogue/.
If you would like to buy copies, you can contact the Queen's Printer Bookstore:
Main Floor, Park Plaza 10611 - 98 Avenue Edmonton AB T5K 2P7
Phone: (780) 427-4952 Fax: (780) 452-0668
Website: www.qp.gov.ab.ca
What happens if I am no longer able or if I don't want to act as trustee any more?
You (or another interested party) may also apply for a court order discharging you from your responsibilities. You must give at least 10 days notice of your application to the same list of people who were notified of your initial application (see Question 5). The judge of the Surrogate Court may grant an order releasing you from your duties as trustee if you say that you are unwilling or unable to continue to act.
Note that the judge may also discharge a trustee if the dependent adult is no longer in need of a trustee, or if the trustee
- fails to act;
- acts in an improper manner or a way that may endanger or has endangered the estate of the dependent adult;
- is guilty of a breach of trust;
- is no longer a suitable person to act; or
- is no longer a resident of Alberta.
Before discharging a trustee, the judge will make sure that suitable arrangements have been or will be made for the handling of the estate of the dependent adult or that another application for trusteeship will be made.
What happens if I cannot act temporarily or I am away for an extended time?
It is possible to name an alternate trustee. The person proposed as the alternate must give consent in writing to act in the event of the death or temporary absence of the trustee. In the case of a temporary absence, the trustee must give written authorization to the alternate trustee to act. Once authorized to act, the alternate trustee has the same powers and authority as the trustee. If the trustee has died, the alternate trustee must notify the Clerk of the Court in writing of the death and send in a certified copy of the death certificate of the previous trustee.
What happens if the dependent adult dies?
Once the dependent adult dies, the trustee must render an accounting to the legal representative of the deceased. If the legal representative is not satisfied with the accounting, he or she may apply to the Surrogate Court for an order requiring the trustee to bring in and pass the accounts relating to the management of the dependent adult's estate. You should notify the Public Trustee and the Clerk of the Surrogate Court of the date of death.
My father has become incapable of managing his affairs and is in danger of losing some property very soon. Is there a way I can obtain a trusteeship order on an emergency basis?
Yes. The court will dispense with the need to obtain a report if it can be shown that some or all of the property or estate of an adult, in respect of whom an application to appoint a trustee has been made, is in imminent danger of serious loss and it is necessary for someone to make a decision to prevent the loss. It must be impossible or not practical to obtain a report before the loss will occur. In this situation the court can appoint a trustee to take possession and manage the property as specified by the court.
Any order made on an emergency basis is subject to review by the court within 90 days.
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This page was last updated in August, 2006.
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