How to Apply for Adult Guardianship in Alberta: Step-by-Step Process

When an adult can no longer make decisions about health care, where to live or other personal matters, a family member may need legal authority to step in. In Alberta, that authority can come from a personal directive the adult made earlier, which involves no court, or from a court order under the Adult Guardianship and Trusteeship Act if there is no directive. The process has several steps, and it helps to know them before you start.

This article walks through who can apply, the capacity assessment, the forms, notice, the hearing or desk review, and what happens after the order. It explains how things generally work. Your situation may differ, so a lawyer can confirm the details for you.

This article covers the law of Alberta.

What guardianship covers and what the Court must find

Guardianship covers personal decisions such as health care, where the adult lives, who they associate with, education or training, social activities, employment and legal proceedings. A guardian cannot make financial decisions or consent to sterilization. Finances fall under trusteeship, and you can apply for both at once.

The law presumes an adult has capacity until the contrary is determined. Capacity means the ability to understand the information relevant to a decision and to appreciate the reasonably foreseeable consequences of making it or not making it.

The Court may appoint a guardian only if it is satisfied of three things:

• The adult lacks capacity to make decisions about the personal matters involved.
• Less intrusive alternatives were considered or tried and would not likely be, or have not been, effective.
• The order is in the adult's best interests.

The Court grants a guardian authority only over the personal matters it considers necessary.

Step 1: Consider alternatives and check who can apply

Because the Court must consider less intrusive options, think about them first. Alternatives include supported decision-making, a personal directive, specific decision-making and co-decision-making. If the adult has a personal directive, the Court may not give a guardian authority that an agent can exercise under it unless the agent's authority is terminated, and a guardian must follow clear and relevant instructions in the directive.

Any interested person may apply for a guardianship order. That includes the Public Guardian, the Public Trustee, and anyone 18 or older who is concerned for the adult's welfare. A proposed guardian must be 18 or older, consent to act, and be someone the Court is satisfied will act in the adult's best interests. The Alberta government also expects the proposed guardian to have a relationship with the adult, be available, have no conflict, and complete criminal record and reference checks.

Step 2: Get the capacity assessment report

A guardianship application must include a capacity assessment report about the adult, subject to the Court's powers where the adult will not be assessed. The assessor looks at whether the adult understands the facts to consider and what could happen with each option. Disagreeing with a decision does not by itself mean the person lacks capacity.

• Physicians and psychologists can do these assessments. Certain other health professionals, such as registered nurses, psychiatric nurses, social workers and occupational therapists, can do so if they are trained and approved as designated capacity assessors.
• Before the assessment, a doctor must give the adult a medical exam to rule out a temporary or reversible condition.
• The assessment form is valid for 6 months and must be dated in the 6 months before you submit the application.
• Fees are capped by regulation. The Alberta government lists up to $500 for guardianship or trusteeship and $700 for combined guardianship and trusteeship. Applicants in financial hardship can contact the OPGT.

If the adult refuses or is prevented from being assessed, the Court can decide on the available evidence. The Court can also order an assessment itself.

Step 3: Choose your route and file

You choose between a desk application and an application with a hearing.

A desk application uses Form 14 (Application), Form 15 (Affidavit of Applicant), Form 32 (Guardianship Plan), Forms 24 and 26 (consents of the proposed guardian and alternate) and Form 30 (Personal References). For a hearing, a copy of the filed package must be served on the OPGT at least 30 days before the hearing date.

Step 4: Notice, review and the Court's decision

Notice of the application must be personally served on the adult. The Court may dispense with service if notifying the adult would be harmful to them.

OPGT staff speak with the adult, contact proposed decision-makers about background checks, and prepare a court report. Anyone who does not support the application can ask for a hearing and must attend it. The Court may decide without a hearing if no one asks for one and it considers a hearing unnecessary, and any person served may appear.

The Alberta government says an application usually takes about 6 months from submission of ready paperwork until the Court decides. The court filing fee is up to $300, and other costs include the capacity assessment, any legal fees and a background check fee. A Hardship Application for Costs Against the Crown is available.

Urgent cases, special situations and what to do next

If there is immediate risk, an urgent order may be possible using Forms 15, 39 and 18, with a $300 fee. The Court may appoint a temporary guardian for up to 90 days, and a regular application is needed if guardianship is still required afterwards. A minor who will turn 18 within a year can be the subject of an application, and the Alberta government suggests applying as soon as possible after the minor turns 17 so the order is effective at 18.

Once appointed, a guardian must act in the adult's best interest, act diligently and in good faith, encourage independence, use the least intrusive effective approach, inform the adult of important decisions, keep records and protect personal information. The guardian must also give copies of the court order to the adult, interested parties and the OPGT. A review of the order can be sought at any time.

• Talk with the adult's family and doctor about less intrusive options.
• Arrange a medical exam and a capacity assessment, and keep the report date in mind.
• Confirm your proposed guardian is willing and can complete the background checks.
• Decide between a desk application and a hearing.
• Gather the forms, consents and personal references.
• Plan for personal service of notice on the adult.
• Speak with a lawyer if anyone may disagree or the situation is urgent.

Frequently asked questions