Guardianship vs Trusteeship in Alberta: What Is the Difference?

When an adult can no longer make decisions safely, families often hear the words guardian and trustee used together. They are different roles under the Adult Guardianship and Trusteeship Act, and each covers a different part of the person's life.

This article compares the two, explains who can apply and how, and points out alternatives that may avoid court. A lawyer can help you decide which fits your situation.

This article covers the law of Alberta.

The core difference

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. Trusteeship covers finances, and you can apply for both at once.

The Court grants a guardian authority only over the personal matters it considers necessary. The guardian may then act, decide and give consents on those matters.

Who can apply and how

Any interested person may apply for a guardianship order, including the Public Guardian, the Public Trustee, and anyone 18 or older concerned for the adult's welfare. An interested person may also apply for a trusteeship order. The Court may make a trusteeship order for an adult ordinarily resident in Alberta.

Applicants choose a desk application or an application with a hearing. A desk application suits cases where no one is expected to disagree and it is not time-sensitive, while a hearing suits cases where someone may disagree or time matters. Notice of a guardianship application must be personally served on the adult, though the Court may dispense with service if notifying the adult would be harmful to the adult. Notice of a trusteeship application must also be personally served on the adult, but that rule is subject to an exception in s 46(4) of the Act, so it is worth confirming with a lawyer how it applies to your situation.

• Guardianship desk applications use Form 14, Form 15, Form 32 (Guardianship Plan), Forms 24 and 26 and Form 30.
• Trusteeship applications use Form 14, Form 15, Form 34 (Trusteeship Plan), Forms 27 and 29 and Form 37 (Inventory).
• A guardianship application must include a capacity assessment report about the adult, subject to s 105.

Time, cost and urgent situations

A guardianship 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.

For an urgent guardianship order where there is immediate risk, the Court may appoint a temporary guardian for up to 90 days, and a regular application is needed if guardianship is still required afterwards. For an urgent trusteeship order, the adult must be in immediate danger of serious financial loss, and a temporary trustee cannot sell, dispose of or encumber the property.

Duties and oversight

Guardians 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.

A trustee must act in the adult's best interests and with the care, skill and diligence of a reasonably prudent person. When directed, the trustee must submit accounts for Court examination and approval. A review can be sought at any time, and the Court shall terminate a trusteeship order if satisfied the person no longer needs a trustee.

Alternatives and what to do next

The Alberta guidance says to consider alternatives first. For personal matters these include supported decision-making, a personal directive, specific decision-making and co-decision-making. For finances they include informal trusteeship or an enduring power of attorney. 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 where a directive has clear and relevant instructions, the guardian must follow them. An enduring power of attorney ends when a trusteeship order is granted in respect of the donor.

• Check whether the adult signed a personal directive or enduring power of attorney.
• Decide whether the problem is personal care, finances or both.
• Arrange a capacity assessment if court is likely.
• Ask a lawyer whether a less intrusive option would work.
• Gather the information needed for the plan and inventory forms.

Frequently asked questions