Emergency Guardianship or Trusteeship in Alberta: Urgent Orders

You may be looking at a hard situation. An adult in your family can no longer look after themselves or their money, and something is going wrong now. They may be living somewhere unsafe, or their savings may be disappearing. The usual court process for guardianship or trusteeship can take a long time, and you may not have that time.

Alberta has a faster route for urgent cases, but it is narrow and temporary. This article explains when it applies, what it involves, what a temporary order can and cannot do, and what comes next. Fees, forms and some rules can change over time, so confirm current details with a lawyer or the Court before you file.

This article covers the law of Alberta.

Why there is an urgent route

A regular guardianship application usually takes about 6 months from the time ready paperwork is submitted until the Court decides. That is too slow when there is immediate risk. For those cases the Adult Guardianship and Trusteeship Act allows a short-term order.

Guardianship covers personal decisions such as health care and where the adult lives. A guardian cannot make financial decisions. Trusteeship covers finances, and you can apply for both at once. The urgent route exists for each of them, with different tests.

Capacity still has to be shown

The law presumes an adult has capacity to make decisions until the contrary is determined. Capacity means being able to understand the information relevant to a decision and to appreciate the reasonably foreseeable consequences of it. Disagreeing with a decision does not by itself mean the person lacks capacity.

Before a capacity assessment, a doctor must give the adult a medical exam to rule out a temporary or reversible condition. A regular guardianship application must include a capacity assessment report, although the Court can decide on the available evidence if the adult refuses or is prevented from being assessed. For trusteeship, the Court must be satisfied the adult lacks capacity to make decisions about financial matters. Because an urgent case still depends on capacity, it is sensible to speak to the adult's doctor early.

Capacity assessment fees are capped by regulation, at up to $500 for guardianship or trusteeship and $700 for combined guardianship and trusteeship. People in financial hardship can contact the Office of the Public Guardian and Trustee (OPGT).

Urgent guardianship and urgent trusteeship compared

For an urgent guardianship order, the applicant uses Forms 15, 39 and 18 and pays $300. Section 27 of the Act requires review within 90 days. Check the current forms before filing, because they may have changed.

Service, notice and other protections

Notice of a guardianship application must be personally served on the adult, although the Court may dispense with service if notifying the adult would be harmful to them. For trusteeship, notice must also be personally served on the adult, subject to s 46(4). Whether and how these rules apply to an urgent application is something a lawyer can confirm for your case.

Separately, the Public Guardian may apply for a temporary protection order where a represented adult is at risk of serious harm. If you are worried about a court-appointed guardian or trustee, complaints under the Act go to a complaints officer. The OPGT also investigates written complaints about court-appointed guardians, trustees and personal directive agents that meet its criteria.

If the adult has an enduring power of attorney, the situation is different. An interested person can apply to the Court to terminate the attorney's power if that would be in the donor's best interests. The Court cannot appoint a substitute attorney, but it may direct a trusteeship application and appoint an interim trustee.

After the temporary order

A temporary order is a stopgap. If guardianship is still required after it ends, a regular application is needed. For a regular guardianship application, the Court may appoint a guardian only if it is satisfied of three things: the adult lacks capacity for the personal matters, less intrusive alternatives were considered or tried and would not likely be or have not been effective, and the order is in the adult's best interests.

A guardian or trustee has duties once appointed. A guardian must act in the adult's best interest and keep records. A trustee must act in the adult's best interests and with the care, skill and diligence of a reasonably prudent person. A temporary trustee has the further limit that they cannot sell, dispose of or encumber the property.

What to do next

• Write down what is happening, with dates, and keep bank statements, letters and any evidence of the risk.
• Ask the adult's doctor about a medical exam and a capacity assessment.
• Check whether a personal directive or an enduring power of attorney already exists. The Court may not give a guardian authority that an agent can exercise under a personal directive unless the agent's authority is terminated, and an enduring power of attorney ends when a trusteeship order is granted in respect of the donor.
• Consider less intrusive options, such as informal trusteeship or specific decision-making, where they fit.
• Contact the OPGT if you cannot find anyone else able to act or if you have a complaint.
• Speak with a lawyer about current forms and fees before you file.

Frequently asked questions