- Alberta law presumes an adult has capacity until the contrary is determined, and capacity means understanding the information and appreciating the foreseeable consequences of a decision.
- Physicians and psychologists can do capacity assessments for guardianship and trusteeship, and some trained, approved health professionals can too.
- For a guardianship, trusteeship or co-decision-making application, the assessment form must be dated within the 6 months before the application is submitted.
When an older relative starts to struggle with money, medication or daily choices, families often wonder whether the person can still make their own decisions. A capacity assessment is the formal way Alberta answers that question for certain legal steps.
This article explains what capacity means, who can carry out an assessment, what it costs, and where the result is used. It is general information, and a lawyer can confirm how it applies to your family.
This article covers the law of Alberta.
What capacity means in Alberta
Under the Adult Guardianship and Trusteeship Act, capacity for a decision means the ability to understand the information relevant to the decision and to appreciate the reasonably foreseeable consequences of the decision, or of making no decision.
The starting point is that every adult is presumed to have capacity to make decisions until the contrary is determined. Capacity is also tied to a particular decision, so someone may be able to handle some choices and not others.
An assessment checks whether the adult can make personal or financial decisions and understand the consequences. The assessor looks at whether the person 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.
Who can do a capacity assessment
Physicians and psychologists can do capacity assessments for guardianship and trusteeship. Certain other health professionals can be designated capacity assessors if they are trained and approved, including registered nurses, psychiatric nurses, social workers and occupational therapists.
The Act defines a capacity assessor as a member of a designated health profession who is designated under the regulations, and it requires the assessor to follow the regulations and complete a report in the prescribed form.
Before the assessment, a doctor must give the adult a medical exam to rule out a temporary or reversible condition. Infections, medication effects and similar problems can look like lasting decline, so this step matters.
Where the result is used
| Situation | How capacity is confirmed |
|---|---|
| Guardianship application | A capacity assessment report about the adult must be included, subject to s 105 |
| Personal directive | No court is involved. Where no capacity determiner is named or available, 2 service providers, at least one a physician or psychologist, make a written declaration |
| Enduring power of attorney | If no one is named to decide, 2 medical practitioners declare in writing that the contingency has occurred. If the document names who must declare, the document governs |
If the adult refuses or is prevented from being assessed, the Court can decide a guardianship application on the available evidence. The Court can also order a capacity assessment.
The adult, a relative, a legal representative, or a person with a close and substantial personal relationship may request a capacity assessment for specific decision-making.
The Court may appoint a guardian only if it is satisfied that 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. Alternatives the Alberta government says to consider before guardianship include supported decision-making, a personal directive, specific decision-making and co-decision-making.
Making a will is a separate question. A will can be made by an individual 18 or older who has the mental capacity to do so. A person under 18 may make a will if they have mental capacity and are or were married or have an adult interdependent partner, are in a specified military force, or have a court order.
Cost, timing and validity
Assessment fees are capped by regulation. The Alberta guidance lists up to $500 for guardianship or trusteeship, up to $500 for co-decision-making, and $700 for combined guardianship and trusteeship. Applicants in financial hardship can contact the Office of the Public Guardian and Trustee (OPGT).
The assessor's form is valid for 6 months for co-decision-making, guardianship or trusteeship applications, and it must be dated in the 6 months before the application is submitted. Fees, forms and assessor rules can change, so confirm the current ones before you book.
The assessment is only one cost of a guardianship application. The court filing fee is up to $300, and other costs include any legal fees and a background check fee. The Alberta page says an application usually takes about 6 months from submission of ready paperwork until the Court decides.
What to do next
- Write down specific examples of decisions your relative is struggling with.
- Ask the family doctor about a medical exam to rule out a temporary or reversible cause.
- Find out whether your relative already has a personal directive or enduring power of attorney, and what it says about who confirms incapacity.
- Ask a lawyer which route fits, since alternatives to court may work.
- Time the assessment so the form will still be dated within 6 months when the application is filed.
Frequently asked questions
Does disagreeing with my family mean I lack capacity?
No. Disagreeing with a decision does not by itself mean a person lacks capacity. The question is whether the person understands the relevant facts and what could happen with each option.
Does a doctor have to be involved?
A doctor must give the adult a medical exam before a capacity assessment to rule out a temporary or reversible condition. The assessment itself can be done by a physician, psychologist or an approved designated assessor.
How long is an assessment good for?
For co-decision-making, guardianship or trusteeship applications, the form is valid for 6 months and must be dated in the 6 months before the application is submitted.
What if the person refuses to be assessed?
On a guardianship application, the Court can decide on the available evidence if the adult refuses or is prevented from being assessed. The Court can also order an assessment.
Sources
- Adult Guardianship and Trusteeship Act (King's Printer) — kings-printer.alberta.ca
- Government of Alberta – About capacity assessment — alberta.ca
- Personal Directives Act (King's Printer) — kings-printer.alberta.ca
- Wills and Succession Act (King's Printer) — kings-printer.alberta.ca
- Government of Alberta – Adult guardianship — alberta.ca
- Powers of Attorney Act (King's Printer) — kings-printer.alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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