Transcript UNDERSTANDING GUARDIANSHIP

GUARDIANSHIP
ORIENTATION
AN OVERVIEW OF THE
A L B E R TA G U A R D I A N S H I P A N D T R U S T E E S H I P A C T :
I T ’ S A P P L I C AT I O N S A N D I M P L I C AT I O N S A S I T P E R TA I N S
TO SUPPORTED DECISION MAKING.
Presented in Partnership by:
Sage’s Guardianship Program is funded by Alberta Seniors and Community
Supports, Office of the Public Guardian
Introduction
 Sage offers the Guardianship Orientation session to provide an
overview of the Adult Guardianship and Trusteeship Act, and the
application process.
 In this orientation, we will discuss some key components of the
Adult Guardianship and Trusteeship Act, which governs
supported decision-making in Alberta. We will review what
decision making options are available and how to get the
process underway using the self-help kit provided by the Office
of the Public Guardian.
 Our hope today is that you gain the information about the various
decision making options to best equip you in the application
process, and for you to know there is help available along the
way.
Overview
We recognize that for some of you with is your first application and
for others it may be a review of your Order. The application
process has changed, and become more ‘self directed’. It has
become easier in some aspects, however, more input is required
from applicants/ guardians/ alternate guardians etc.
The Alberta Guardianship and Trusteeship Act sets out the
necessary legal process for granting power of substitute decision
making to someone else, on behalf of the adult (over 18) who
cannot make their own personal, health, and/ or financial
decisions.
The AGTA replaces the 30 year old Dependent Adult Act. The term
“dependant adult “ is no longer used. “Assisted adult” (CoDecision Making) or “represented adult” (as in the case for
Guardianship & Trusteeship) – reflect a more positive view of the
represented adult.
Adult Guardianship and Trusteeship Act
The changes in the AGTA reflects Alberta’s societal shifts,
including:
 Aging population
 The AGTA reflects the UN Convention on Rights of Persons
with Disabilities.
 Provides a continuum of options for decision-making, rather
than all or nothing approach.
The Adult Guardianship and Trusteeship Act (AGTA) came into force on
October 30, 2009, replacing the 30 year-old Dependent Adults Act
(DAA). AGTA is for adults over the age of 18 years who are unable to
make personal or financial decisions for themselves.
This legislation addresses the current needs of Albertans by providing
options and safeguards to protect vulnerable adults who may want
assistance or are no longer able to make all of their own decisions.
Guiding Principles
The Act is to be interpreted and administered in accordance with
the following 4 guiding principles:
1. An adult is presumed to have the mental capacity to make
decisions, until the contrary is determined.

This is done through a Capacity Assessment Report (which will be
covered a little later in this presentation)
2. Communication method is not relevant to the
determination of capacity.


An adult is entitled to communicate by any means that enables
them to be understood, and the means by which they
communicate is not relevant to a determination of whether the
adult has the capacity to make a decision.
In other words, the inability to communicate verbally does not
necessarily mean the person lacks capacity. Hearing aids, sign
language, technology or interpreters should be provided as
needed when assessing a person’s capacity.
Guiding Principles cont’d…
3. Autonomy is to be maintained through least intrusive and
least restrictive measures.
Where an adult requires assistance to make a decision, or does
not have the capacity to make a decision, the persons
independence must be preserved by ensuring that the least
invasive form of assisted or substitute decision-making option
that is likely to be effective, is provided.
Something to think about: At what point would you want
someone else to make decisions for you?
Guiding Principles cont’d…
4. In determining whether a decision is in an adult’s best interests,
considerations must be given to:


any prior wishes known to have been expressed by the adult
any values and beliefs known to have been held by the adult while
the adult had previous capacity.
In other words if they did not lack capacity, what would be their
decision? Substitute decision making can be more difficult
than making our own decisions. We need to understand their
personality, wishes, values and beliefs.
Key Concepts
 The Act allows for new decision making options designed to
provide as much autonomy as possible
 The Act balances autonomy (independence) with protection.
There are more safeguards built in.
 There are more steps for new applicants to become codecision makers, guardians or trustees.
 There is a new complaints process if there are concerns with
the existing Order.
 There are a continuum of supported decision making options,
ranging from Supported Decision-Making through to
Guardianship and / or Trusteeship.
Capacity
Capacity is defined in the Act as:
 “in the respect of the making of a decision about a matter, the
ability to understand the information that is relevant to the
decision and to appreciate the reasonably foreseeable
consequences of making the decision, or failing to make a
decision.”
The new AGTA views capacity on a continuum rather, than
something you have, or don’t have and is reflected in the
different levels of options available:
 Supported Decision Making
 Specific Decision Making
 Co-Decision Making
 Guardianship
 Trusteeship
Capacity Assessment
 In order to begin an application for Co-Decision Making,
Guardianship, and/or Trusteeship, a Capacity Assessment
Report is required.
**It is highly advisable to have a completed Capacity Assessment
Report before beginning the application forms**
 An assessment is needed to determine where the potentially
assisted adult lies on the continuum of capacity.
 This assessment process is standardized and focuses on both
cognitive and functional abilities – not just an IQ score.
 Targets the types of decisions the adult will need to make.
 Identifies the level of assistance needed (on the continuum).
Capacity Assessment cont’d…
 The AGTA allows for physicians and psychologists and other
trained professionals (SW,OT,RN) to assess an adult’s capacity
for purposes of court-order applications. The Office of the Public
Guardian has a list of assessors if needed.

Information available online:
http://www.humanservices.alberta.ca/opg/capacityassessors or phone:
780-638-3501
 The Assessor conducts the interview and then provides a
summary and recommendations. What they give you is the
Capacity Assessment Report (either Form 3 or Form 4). Ask
for the original.

Forms are available online:
http://www.humanservice.alberta.ca/opg/CapacityAssessment
Capacity Assessment cont’d…
 Very important points:





The Capacity Assessment Report must be completed no more
than 6 months prior to application. If adult is 17, complete
application documents within the 6 month period. The Order comes
into effect on 18th birthday.
You may require a NEW Capacity Assessment Report if your
application is not submitted to the court within 6 months of the date
the Capacity Assessment Report was completed.
There may be a cost associated with the assessment - maximum of
$500 ($700 if including Trusteeship)
If the costs are a financial hardship that inhibit you from proceeding,
you would need to contact the OPG office prior to obtaining capacity
assessment.
You require the original CAR, to submit to the court with your
application.
CONTINUUM OF DECISION MAKING OPTIONS
Adult Makes
Decisions
Supported
Decision-making
Authorization
Has Capacity
Co-DecisionMaking
Specific Decision-Making and
Emergency Decision-Making
Significant
Capacity
Impairment
Temporary Guardianship/
Trusteeship
Guardianship, Trusteeship and
Protection
Temporary lack
of Capacity
Lacks Capacity
Considerations
 So how do you know which option is best? (refer to continuum)




Talk to Doctor. Purpose of the Capacity Assessment Report.
Ideally the Guardian, Trustee or co-Decision Maker is someone
who knows the adult and has a vested interest. The Public
Guardian or Public Trustee only steps in when there is no one
else suitable.
Role of Alternate Guardians / Alternate Trustees – to act as
decision makers when Guardians /Trustees are unable to act.
Consider again that the intent of the new Act is to maintain, and
foster as much autonomy for the Assisted Adult as possible.
The emphasis is on “support” rather than “control”
Co-Decision Making
 Is an alternative to full Guardianship for adults whose ability to





make personal decisions is significantly impaired but they can
still make some decisions with support.
Supported Decision Making must be ruled out as a viable option
first
The assisted adult would voluntarily agree to this arrangement
and also be agreeable to the person(s) who is appointed as the
co-decision maker.
All decisions would be made jointly
Limited to personal matters (excludes financial matters or
property)
Capacity Assessment Report is needed for the purposes of a
court-order application (Form 3).
Guardianship
 If an adult lacks the capacity to make personal decisions the
court may appoint a Guardian to make decisions for them.
 Areas of Authority would include: health care, living
arrangements, who they associate with, social activities,
education, employment, and non-financial legal matters.
 Does not include financial decisions (this falls under Trusteeship
or Informal Trusteeship)
 A Capacity Assessment Report (Form 4) for the purposes of a
court order application is required – and will indicate the areas
the person lacks capacity, and needs assistance making
decisions.
Trusteeship
 Trusteeship applications can be made when an adult is viewed
as unable to make their own financial decisions.
 There are two options:
 Formal Trusteeship (court ordered): If the adult has some
registered savings products at a financial institution, or assets
such as property, then Formal Trustee may be required to deal
with those assets. To apply for formal court appointed
trusteeship, you need to complete the trustee related questions
in the application forms, a trusteeship plan and provide an
inventory. Documents are part of the self-help kits.
Trusteeship Cont’d…
 Informal Trusteeship: Is not court ordered. If the adult has minimal assets,
and only needs help managing a monthly government cheque, then
informal trusteeship can be arranged.
 An individual can be named as an ‘Administrator’ on file with various
government income programs. This includes AISH, Income Support, CPP,
OAS and Alberta Seniors Benefit, as well as Veterans Affairs. Each income
program will have their own paperwork you need to complete. This usually
includes having another physician report indicating the individual does not
have the ability to manage his or her finances. Contact the relevant
government income programs to confirm their requirements for informal
trusteeship.
 You may also set up a joint bank account, to be able to assist with day-today finances and banking. You would complete the necessary forms
required by the bank – it is best to speak to the staff at the specific bank to
find out what they require.
Decision Maker Suitability
 Each new Guardian, Alternate Guardian, Trustee, Alternate
Trustee and Co-decision Maker must provide:


2 Personal/character references
Criminal record check


Staff on behalf of the Office of the Public Guardian will complete a
background check which includes contacting personal references and
completing a Criminal Record Check
Credit Report for Trustee and Alternate Trustees.
 If you are an existing Guardian/Alternate Guardian;
Trustee/Alternate Trustee, completing a background check or
providing references is not necessary if you are doing a
Review Application of your existing Order.
Application Forms
 Application forms for Co-Decision Making, Guardianship and/or
Trusteeship are available either online, or as printed Self-Help
Kits. The online forms can be accessed from the Office of the
Public Guardian website:

http://www.humanservices.alberta.ca/opg/guardianship/forms
Please Note: It is easier to fill out the forms online, and save them
to your computer or a ‘flash drive’. There are many drop down
boxes and areas that can expand, as opposed to the printed paper
forms. If you are printing forms from the website, you want to
ensure that the Application includes enough space to name all
required family members, and Guardianship / Trusteeship Plans
include enough space to enter each proposed Guardian / Alternate
Guardian, and Trustee / Alternate Trustee
 “Hard copy” application forms are also available from Sage or the
Office of the Public Guardian.
Other Decision-Making Options
(non Court Ordered)
 Non-Court Ordered decision making options include:
 Personal Decision-Making:
 Supported Decision-Making (completed when a person has capacity)
 Personal Directive (completed when a person has capacity)
 Specific Decision-Making (when a person does not have capacity)
 Financial Decision-Making:


Power of Attorney / Enduring Power of Attorney (completed when a
person has capacity)
If a person does not have capacity, the only other options are through
Informal or formal Trusteeship
Supported Decision Making
 This option is for Albertans who have capacity and can make
their own decisions but would like some help from someone they
trust to be their ‘supporter’.
 The adult can give their supporter(s) legal permission to obtain
relevant information that might otherwise be protected under the
privacy laws.
 Obtaining information from a doctor for example.
 Supported Decision-Making can become effective immediately –
while the adult has capacity. This is very useful for many of us
who have elderly parents who don’t fully understand their
medication or parents whose first language is not English.
 It’s effective only while the person has capacity – it is no
longer in effect if a person ‘loses’ capacity, and does not cover
financial matters.
 These do not require a Capacity Assessment
Personal Directive
 A Personal Directive is a written, signed, dated and witnessed
legal document that allows you to name a person you trust to
make personal and health related decisions on your behalf in the
event you no longer have the capacity to make decisions.
 A Personal Directive comes into effect if a person loses
capacity. Capacity is determined by a physician before a
Personal Directive become ‘enacted’
 All capable Albertans should have a Personal Directive. (If
you have a PD no one would need to apply for guardianship
on your behalf).
 Self Help kits are available through the Office of the Public
Guardian and Sage
Specific Decision-Making
 Applies in situations when an adult lacks capacity and does not
have a Personal Directive or a court-ordered Guardian.
 Initiated by health care providers, the Specific Decision-Making
form gives the authority to select a decision maker from a list of
family members to make decisions regarding health care,
temporary or permanent admission to a facility, etc.
 This is a ‘once or twice’ option.
Example: mom in hospital following a stroke – getting
moved from acute care to sub acute, or to a long term
facility.
Example: 20 yr. old son needs dental surgery
 The Specific Decision Making form can be completed, in order to
grant authority for specific decisions to be made.
Emergency Decision Making
 A physician may provide emergency health care to save a life,
prevent serious physical /mental harm or alleviate severe pain,
when an adult cannot provide consent.
 Example: your spouse arrives at hospital following a car
accident unconscious.
Enduring Power of Attorney
 Is a written, signed, dated and witnessed legal document that
gives someone else the authority, to act on your behalf with
respect to your financial affairs, including handling your debts.
 An Enduring Power of Attorney can be written so that it becomes
effective immediately or only in the case that you no longer have
the mental capacity to make or understand financial decisions.
 Depending on the situation, a person with a disability may have
the capacity to sign an Enduring Power of Attorney.
 One does not need a lawyer to draw up a an EPA, however it is
recommended that an Enduring Power of Attorney document is
completed with a lawyer, as most financial institutions are now
requiring this. As well, the lawyer will ensure that they believe the
individual is able to understand the document before it is signed.

Land Titles does not accept any EPA that does not have a lawyer’s
certificate of independent advice attached to it due to potential fraud
issues.
Help is available
 Sage’s Guardianship Program is funded by the Office of the Public




Guardian to provide assistance to individuals completing the Self Help
Kits.
Staff are available for:
 Orientation Sessions that review application process and forms
 Phone consultation
 In-person consultation – appointments can be arranged
Sage staff can provide assistance to you in completing the forms,
reviewing application forms, and completing the Affidavit (including
acting as a Commissioner of Oaths).
Contact:
Guardianship Program Coordinator 780-701-9006
Helpful Links
 Application forms from the Office of the Public Guardian:
http://www.humanservices.alberta.ca/opg/guardianship/forms
 Sage: http://www.mysage.ca/guardianship.cfm
 Gateway Association – “A starting place for families living with
intellectual disabilities” http://www.gatewayassociation.ca/
 Information about planning documents: personal directives and
power of attorney: http://www.cplea.ca
 Information about the continuum of decision-making options:
http://www.humanservices.alberta.ca/opg/guardianship/options/