How to Challenge or End a Guardianship or Trusteeship Order in Alberta

You may be the adult under an order, or a relative who thinks an order is wrong or a guardian or trustee is not doing the job properly. Alberta has several routes, and the right one depends on whether you dispute the order itself or the way it is being carried out.

This article explains the routes the Alberta guidance describes. Appeal rights and deadlines are not covered here, so speak to a lawyer promptly if you think an order should be appealed.

This article covers the law of Alberta.

What the Court had to find

To challenge an order, it helps to know what it rested on. The Court may appoint a guardian only if it is satisfied the adult lacks capacity to make decisions about the personal matters, that less intrusive alternatives were considered or tried and would not likely be or have not been effective, and that the order is in the adult's best interests. For a trustee, the Court must be satisfied the adult lacks capacity to make decisions about financial matters.

Capacity means the ability to understand the information relevant to a decision and to appreciate the reasonably foreseeable consequences. An adult is presumed to have capacity until the contrary is determined, and disagreeing with a decision does not by itself mean the person lacks capacity.

Alberta guidance lists alternatives to consider before guardianship, including supported decision-making, a personal directive, specific decision-making and co-decision-making. For finances, the alternatives are informal trusteeship, an enduring power of attorney, or trusteeship. Whether those options were properly weighed in your situation is worth confirming with a lawyer.

Asking for a review

A review can be sought at any time. It must happen when the order requires, when the adult's capacity changes, or when a decision-maker's capacity changes. Missing the review date does not end the role, but the review is still required. A guardianship review may be sought by the represented person, the guardian or any interested person.

On a trusteeship review the court filing fee is $100. If the adult has regained capacity and termination is sought, a capacity assessment may be required.

It also helps to read the order closely. The Court grants a guardian authority only over the personal matters it considers necessary, and a guardian cannot make financial decisions or consent to sterilization. If a guardian is acting outside the matters listed in the order, that is a point to raise.

Ending an order or removing a decision-maker

• Under s 70(5)(a), the Court shall terminate a trusteeship order if satisfied the person no longer needs a trustee.
• Under s 70(5)(b), the Court may discharge a trustee for breach of trust or unsuitability.
• A trustee must act in the adult's best interests and with the care, skill and diligence of a reasonably prudent person, which gives you a standard to measure conduct against.
• When directed, a trustee must submit accounts for Court examination and approval.
• A guardian must act diligently and in good faith, use the least intrusive effective approach, inform the adult of important decisions and keep records.

If a guardian is not following clear and relevant instructions in a personal directive, that is also worth raising, because the guardian must follow them.

Urgent orders are different. 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 temporary trustee cannot sell, dispose of or encumber the property.

Complaints and protection

The OPGT investigates written complaints about court-appointed guardians, trustees and personal directive agents that meet its criteria. Complaints under the Act go to a complaints officer, and investigators may interview the adult. The Public Guardian may apply for a temporary protection order where a represented adult is at risk of serious harm.

A person who wilfully causes loss to a represented adult's property faces a fine of up to $10 000.

Different rules apply if the attorney is acting under an enduring power of attorney. The OPGT cannot investigate those complaints. Instead, if others disagree with the attorney, any interested person may apply to the Court to terminate the power if that would be in the donor's best interests, and the Court may order an attorney to pass accounts. An enduring power of attorney also ends when a trusteeship order is granted in respect of the donor.

If the concern is about an agent under a personal directive that is in effect, any interested person may complain to the Public Guardian.

What to do next

• Write down exactly what you disagree with: the order itself, or how the guardian or trustee is acting.
• Collect records, such as statements, receipts, the court order and any capacity assessment.
• Check the order for a review date, and remember a review can be sought any time.
• Send a written complaint to the OPGT if the concern fits its criteria.
• Speak to a lawyer early about appeal options and time limits.

Frequently asked questions