Trusteeship
The Dependent Adults Act (Alberta) sets out the provisions governing trusteeship.
Important Changes coming to the Dependent Adults' Act
in 2009 Appointment of a trustee Appointment of a trustee by court Who can be a trustee? Powers of the trustee What will the court consider in a trusteeship application? Review of a trusteeship appointment Discharge of trusteeship order Appointment of Public Trustee following issue of Certificate of Incapacity Right of appeal to appeal panel Review of Certificate of Incapacity Termination of Certificate of Incapacity Termination of trusteeship of Public Trustee
Important changes to the Dependent Adults' Act in 2009
Before the end of 2009, the Government of Alberta will bring into force the
Adult Guardianship and Trustee Act (AGTA). The AGTA will replace the current Dependent Adults’ Act. Once
proclaimed, the AGTA will make important changes to decision-making for adults
who lack capacity. Click here for more information.
Appointment of a trustee
A trustee can be appointed by court order, or upon the issue of a Certificate of Incapacity in the case of a person who has been living for a while in a facility. In the latter case, the Public Trustee will be appointed.
Appointment of a trustee by court
With regard to a court appointed trustee, 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 by a hearing process.
When an application is made to the Surrogate Court for the appointment of a trustee, the person applying must be an adult who is concerned about the welfare of another person. 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 trustee. The only situation when the court may dispense with this report is if there is some immediate threat to the property or estate of the adult for whom trusteeship is being requested, and the report will not be obtained quickly enough to prevent the loss. If an order for trusteeship 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 six months, or treat it as a new application.
The person making the application has to serve a copy on:
A notice of objection form must be served with a copy of the application. Anyone can file a notice of objection to the application to appoint a trustee 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 a trustee appointed without a hearing.
If a notice of objection is filed or the applicant specifically requests a hearing, the court will schedule a hearing. The person applying for the trusteeship 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 trustee, the court can also appoint an alternate trustee with his or her written consent. The alternate will act if the original trustee dies or is absent temporarily. If there is no alternate trustee when a trustee dies, the Public Trustee will become the trustee of the dependent adult until a new trustee is appointed.
Who can be a trustee?
A person appointed as a trustee must be an adult who has agreed to act as a trustee for a particular person. When confirming an appointment the court has to be sure:
A trust corporation or the Public Trustee may also be appointed as a trustee.
Powers of the trustee
Subject to any conditions or restrictions imposed by the court, a trustee has decision-making authority in the following matters:
The court can further authorize the trustee to do the following:
The court can make a trusteeship order subject to any special conditions or restrictions. The trustee must exercise his or her power and authority in the way required by the Dependent Adults Act, that is, for the maintenance, education, benefit, and advancement of the dependent adult.
The Dependent Adults Act also includes detailed accounting provisions in relation to the estate of a dependent adult with which a trustee must comply.
What will the court consider in a trusteeship application?
Whether an application is dealt with through paperwork or with a hearing, the court has a duty to consider several matters in deciding whether to grant an order for trusteeship.
First, the court needs to know whether the person for whom the trusteeship order is sought needs a trustee.
Second, the court has to be sure that it is in the best interests of the person for a trustee to be appointed.
To assist the court in coming to a decision, the court can ask for a report to be prepared on the person for whom trusteeship is sought. The report should look at all his or her present and future needs, and the ability to make reasonable judgments in relation to the estate. The court will consider any existing enduring power of attorney.
Anyone who has been served with notice of a trusteeship hearing can attend the hearing. In addition, anyone else that the court agrees to hear from can attend.
Review of a trusteeship appointment
When an order of trusteeship has been granted by the court, the order has to state the time when 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 anything else that must be done regarding a review.
At any time, a dependent adult, the Public Guardian, the Public Trustee, or anyone concerned for the welfare of the dependent adult can apply to the court for a review of the trusteeship 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 the dependent adult and all those who had to be served in the application for the appointment of a trustee, including the trustee. 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.
Upon review of a trusteeship order, the court can then change, continue, or cancel the order with any conditions or requirements. A copy of the new order is then served upon all parties.
Discharge of trusteeship order
Anyone, including the trustee, can apply to the court for an order discharging a trustee from his or her duties. Notice of the application must be given ten days before a hearing date to all those parties entitled to notice of a review of a trusteeship order. The court has the power to dispense with the need for service of notice.
The court will then consider if the dependent adult is still in need of a trustee or whether the trustee is:
After consideration, the court can discharge the trustee or make any other appropriate order. The court must be sure that suitable arrangements are in place for the dependent adult or that another application for trusteeship will be made.
Appointment of Public Trustee following issue of Certificate of Incapacity
A Certificate of Incapacity can be issued for an adult who has been living for any length of time in a facility. Two physicians must confirm independently that the person is not able to make reasonable judgments about his or her estate.
The certificate has to show the names of the examining physicians, and the dates they carried out their examinations, together with the facts used to form their opinions as opposed to facts relayed to them by others.
The physicians must notify the Public Trustee after issuing the certificate. They must also notify the person who is the subject of the order (unless they feel it would be harmful to that person's physical or emotional health) and the person's guardian or nearest relative in Canada.
When the certificate is issued, the Public Trustee becomes the trustee of the estate of the person named in the certificate, unless there is an enduring power of attorney in existence. The Public Trustee must give the person named in the certificate, and his or her guardian or nearest relative a written statement. The statement must confirm:
Right of appeal to appeal panel
Anyone who is the subject of a Certificate of Incapacity can appeal to an appeal panel for termination of the certificate. The appeal can also be made by someone else on the subject's behalf. Appeals cannot be made more than six months apart unless the appeal comes from the Public Trustee or the Public Guardian.
Notice of the appeal is given by the chair of the panel to the applicant, any guardian of the applicant or nearest relative in Canada, the Public Trustee, and the Public Guardian. All hearings of the panel are conducted in private. The chair of the panel can give permission for anyone other than the panel to be present. Only the applicant and anyone else served with notice of the hearing have a right to be present for the presentation of any evidence to the panel. The applicant may even be excluded for the presentation of evidence if the panel feels it may adversely affect the person's health. If the applicant is excluded, the panel will appoint someone to be present on behalf of the applicant.
The appeal panel can terminate a Certificate of Incapacity, confirm the certificate, or confirm the certificate with regard to only part of the person's estate. The appeal panel can also order that the costs of the appeal be paid either by the Crown, the person who made the application if it would not cause hardship, the person in respect of whom the application was made if it would not cause hardship, or the estate of the dependent adult if it would not cause hardship. A written report of the decision is sent to all parties who were given notice of the hearing.
An appeal of the decision can be made to the Court of Queen's Bench. Any appeal to court must be based upon principles of administrative law, so legal assistance is advisable.
Review of Certificate of Incapacity
The Public Trustee must apply to have a Certificate of Incapacity reviewed by a review panel at least once every two years. The chair of the review panel must give notice of the review at least ten days in advance to the person named in the certificate, the person's guardian or nearest relative in Canada, the Public Trustee, the person in charge of an institution in which the incapacitated person is living, and the Public Guardian if the person named in the certificate does not have a guardian.
The review panel must consider whether the person named in the certificate is able to make reasonable judgments with respect to matters relating to any or all of the person's estate, and whether he or she needs a trustee.
The panel can then order that the Certificate of Incapacity remains in effect in respect to all or part of an estate, or that the certificate is terminated. The panel can impose conditions if the order is in effect for only part of an estate. The panel must then direct when the certificate must be reviewed again within two years.
Termination of Certificate of Incapacity
A Certificate of Incapacity is terminated by:
Termination of trusteeship of Public Trustee
The appointment of a Public Trustee ends upon:
The Public Trustee must then account for the estate or the part he or she was managing.
Funding for OakNet is provided by the Alberta Law Foundation.
Updated: October 23, 2003
There will not be a conflict of interest simply because the trustee is a potential beneficiary or a relative of the dependent adult.
A Certificate of Incapacity can also be terminated after separate examination by two physicians who confirm that the individual is able to make reasonable judgments relating to his or her estate. The order must be completed in the same way as an order creating a Certificate of Incapacity and served on the same people.
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