Urgent Temporary Guardianship or Trusteeship Orders in Alberta

When an adult has lost the ability to make decisions and is in real danger, waiting months for a court order may not be an option. A family member may see a person being exploited, unable to get safe care, or about to lose money or a home, and may have no legal authority to step in.

Alberta has an urgent route for these situations. It is short-term and limited, and it does not replace the regular process. This guide explains when it is available, what it involves, and what usually has to happen afterwards.

This article covers the law of Alberta.

When an urgent order is available

Guardianship covers personal decisions such as health care, where the adult lives and legal proceedings. Trusteeship covers finances. You can apply for both at once. The urgent route has a different test for each.

Worry alone is not enough. A general concern about an adult's choices does not meet the test. Disagreeing with a decision does not by itself mean the person lacks capacity, and an adult is presumed to have capacity until the contrary is determined.

Who can apply and what the paperwork involves

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. An interested person may also apply for a trusteeship order.

For an urgent guardianship order, the Alberta government page lists Forms 15, 39 and 18, with a $300 fee. A regular application uses different forms, such as Form 14 and the Guardianship Plan, Form 32. For an urgent trusteeship order, confirm the exact forms and fee with the Court or a lawyer rather than assuming they match the guardianship ones.

Fees, forms and capacity-assessor rules can change. How the current rules apply to your situation depends on the facts, so confirm the latest requirements with the Court, the Alberta government pages or a lawyer before you file. Capacity assessment fees are capped by regulation, and applicants in financial hardship can contact the OPGT.

Capacity, notice and less intrusive options

The Court can appoint a guardian only if it is satisfied the adult lacks capacity for the personal decisions, 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. A trustee can be appointed if the Court is satisfied the adult lacks capacity for financial decisions.

Whether a capacity assessment report is needed for an urgent order depends on your situation, so it is worth confirming with the Court or a lawyer. 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. Where an assessor's form is used for an application, it must be dated within the 6 months before the application is submitted. Before an assessment, a doctor must give the adult a medical exam to rule out a temporary or reversible condition.

Notice must generally be personally served on the adult, but the Court may dispense with service on the adult if notifying them would be harmful. Trusteeship notice is also personally served on the adult, subject to an exception in the Act.

Look at what already exists before applying:

• A personal directive. The Court may not give a guardian authority that an agent can exercise under a directive unless the agent's authority is terminated.
• An enduring power of attorney (EPA), which may already let someone manage money without a trusteeship order.
• Informal trusteeship, which the Alberta page says to consider first.
• Supported decision-making, specific decision-making or co-decision-making.

The limits of temporary authority

A temporary guardian can be appointed for up to 90 days, and the Act requires review within 90 days under s 27. A temporary trustee cannot sell, dispose of or encumber the property. That means an urgent trusteeship order is aimed at protecting the adult from immediate loss, not at restructuring their finances.

An urgent order also does not end the need for a regular application. If guardianship is still required after the temporary period, a regular application is needed.

A regular application can be a desk application, decided on the paperwork, or an application with a hearing. A hearing suits cases where someone may disagree or time matters. For a hearing, a copy of the filed package must be served on the OPGT at least 30 days before the hearing date.

What to do next

• Write down the specific risk: what is happening, when, and what could happen without an order.
• Gather any personal directive, EPA, bank records and contact details for family members and care providers.
• Ask a doctor or approved assessor about a capacity assessment, and note the date on the form.
• Find out whether an existing directive or EPA already gives someone authority.
• Plan how the adult will be served and whether that could be harmful.
• Start preparing the regular application early, since the temporary order will not last.
• Speak with a lawyer about the right forms and current fees.

If you cannot afford the costs, a Hardship Application for Costs Against the Crown is available. Because urgent orders are time-sensitive and technical, legal advice early can help you avoid delays.

Frequently asked questions