Guardianship
The Dependent Adults Act (Alberta) sets out the provisions governing guardianship.
Appointment of a guardian Who can be a guardian? Powers of the guardian What will the court consider in a guardianship application? Review of a guardianship appointment When and how will the guardianship order be reviewed? What will the court consider on a review of guardianship order? How can a guardianship order be discharged?
Appointment of a guardian
Guardians can be appointed under the Dependent Adults Act. A guardian can only be appointed by court order. A special court department called the Surrogate Court deals with the applications. Some applications are dealt with simply by paperwork. Other applications are dealt with in a hearing process.
There has to be an application to the Surrogate Court for the appointment of a guardian. The person applying must be an adult who is concerned about your welfare. The Public Guardian or the Public Trustee could also make the application.
The application must include a report from a physician or psychologist and the written consent of the person proposed as the guardian. The only situation in which the need for this report may be dispensed with by the court is if there is some immediate danger to your physical or mental health, and the report will not be obtained quickly enough. If an order for guardianship is made in these urgent circumstances, the order must provide for a review by the court within ninety days. At the review, the court can cancel the order, extend it for up to thirty days, or treat it as a new application if all copies of documents have been prepared and served.
The person making the application has to serve a copy on a number of others:
Anyone can file a notice of objection to the application to appoint a guardian within ten days of the above people being served with the application. If the court does not receive any objection notices, the documents can be reviewed and your guardian appointed without a hearing.
If a notice of objection is filed or the applicant specifically requests a hearing, the court will schedule a hearing into the guardianship appointment. The person applying for the guardianship order must then serve a copy of the application on all those people identified above, plus the person who filed the notice of objection, if they are not on that list.
The Act contains some special time limits for serving documents on people who live outside of Alberta.
When appointing a guardian, the court can also appoint an alternate guardian with his or her written consent. The alternate will act if the original guardian dies or is absent temporarily. If there is no alternate guardian when a guardian dies, the Public Guardian will become your guardian until a new guardian is appointed.
Who can be a guardian?
A person appointed as a guardian must be an adult who has agreed to act as a guardian for you. When confirming an appointment, the court has to be sure that the guardian is suitable, will act in your best interests, and that there will be no conflict between your interests and your guardian's. There will not be a conflict of interest simply because the guardian is a potential beneficiary or your relative.
Powers of the guardian
When making an order for guardianship, the court has to set out whether or not the guardian has decision-making authority in respect of the following matters:
The court can make a guardianship order subject to any special conditions or restrictions. The guardian must exercise his or her power and authority in the way required by the Dependent Adults Act, that is, in your best interests, in a way that encourages you to become capable of caring for yourself and making reasonable judgments for yourself, and in the least restrictive way possible.
What will the court consider in a guardianship application?
Whether an application is dealt with by paperwork or with a hearing, the court has a duty to consider several matters in deciding whether to grant an order for guardianship.
First, the court needs to know whether you have made a personal directive. The court is able to limit the authority of a guardian to matters that are not dealt with by the directive. If the court wants to give the guardian decision-making powers that are granted to an agent under your personal directive, it can only do so by terminating the authority of the agent in respect to those matters. If a guardian is given authority over any matter contained in a personal directive, he or she must act in accordance with the clear instructions given in the directive.
Second, the court has to be sure that you would substantially benefit from the order being granted.
Third, the court has to be sure that it is in your best interests for a guardian to be appointed.
Review of a guardianship appointment
To assist the court in coming to a decision, the court can ask for a report to be prepared that looks at all your present and future needs, your ability to care for yourself, and your ability to make reasonable judgments.
Anyone who has been served with notice of a guardianship hearing can attend the hearing. In addition, anyone else that the court agrees to hear from can attend.
When and how will the guardianship order be reviewed?
When an order of guardianship has been granted by the court, the order has to state the time period within which the order must be reviewed. This can be no longer than six years from the date of the order or from the date of the last review. The order must also state who is to apply to court for the review and any other matter that must be carried out with respect to a review.
At any time, you, the Public Guardian, the Public Trustee, or anyone concerned for your welfare can apply to the court for a review of the guardianship order. Anyone applying for a review must use the form set out in the regulations to the Dependent Adults Act. Copies of the application for review must be served on you and all those who had to be served in an application for the appointment of a guardian, including the guardian.
Anyone can file a notice of objection to the review. If there is no notice of objection, the court can consider the matter without a hearing. If there is a notice of objection or the court considers a hearing is necessary, the person applying for a review must then serve notice of the hearing.
What will the court consider on a review of guardianship order?
In reviewing the guardianship order, the court will consider whether the conditions under which the order was originally granted are still applicable, for example:
The court will also consider whether the guardian has exercised his or her power and authority in the way required by the Dependent Adults Act, that is, in your best interests, in a way that encourages you to become capable of caring for yourself and making reasonable judgments for yourself, and in the least restrictive way possible. If a guardian was given authority to carry out matters contained in a personal directive, the court will also consider whether the guardian has done that.
The court can then change, continue, or cancel the order for guardianship with any conditions or requirements that may be necessary. A copy of the new order is then served upon all parties.
How can a guardianship order be discharged?
Anyone, including the guardian, can apply to the court for an order discharging a guardian from his or her duties. Ten days before a hearing date notice of the application must be given to all those parties entitled to notice of a review of a guardianship order. The court has the power to dispense with the need for service of notice.
The court will then consider if you are still in need of a guardian or whether the guardian is:
After consideration, the court can discharge the guardian or make any other appropriate order. The court must be sure that suitable arrangements are in place for you or that another application for guardianship will be made.
Funding for OakNet is provided by the Alberta Law Foundation.
Updated: October 23, 2003
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