What Is a Co-Decision-Maker in Alberta and When Is One Used?

Many families do not want to take over a loved one's decisions. They want the person to keep as much say as possible while getting help. Alberta's Adult Guardianship and Trusteeship Act recognizes this by offering options that are less intrusive than guardianship.

Co-decision-making is one of those options. This article explains where it fits, how capacity assessments work and what an assessment can cost. The detailed working rules of a co-decision-making order are best confirmed with a lawyer.

This article covers the law of Alberta.

Where co-decision-making fits

The Alberta page lists supported decision-making, a personal directive, specific decision-making and co-decision-making as alternatives to consider before guardianship. For finances, the alternatives are informal trusteeship, an enduring power of attorney or trusteeship.

This order of thinking matters in court. The Court may appoint a guardian only if satisfied that less intrusive alternatives were considered or tried and would not likely be or have not been effective. Guardians are also expected to use the least intrusive effective approach and encourage the adult's independence.

It helps to know what guardianship covers. It deals with 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.

If the adult already has a personal directive, the Court may not give a guardian authority that an agent can exercise under the directive unless the agent's authority is terminated. Where a directive has clear and relevant instructions, the guardian must follow them.

Capacity and why it matters

Capacity is about a particular decision. It means being able to understand the information relevant to the decision and appreciate the reasonably foreseeable consequences. An adult is presumed to have capacity until the contrary is determined.

A capacity assessment looks at whether the adult 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. That point is important for families who simply think the adult is making a poor choice.

If guardianship is eventually sought, the application must include a capacity assessment report about the adult. If the adult refuses or is prevented from being assessed, the Court can decide on the available evidence, and the Court can also order an assessment.

Who can start the process, and what it involves

The adult, a relative, a legal representative, or a person with a close and substantial personal relationship may request a capacity assessment for the purposes of specific decision-making.

• Assessors include physicians and psychologists, and certain trained and approved health professionals.
• A capacity assessor is a member of a designated health profession who is designated under the regulations, and the assessor must complete a report in the prescribed form.
• A doctor must first give the adult a medical exam to rule out a temporary or reversible condition.
• The assessor's form is valid for 6 months for co-decision-making, guardianship or trusteeship applications, and must be dated in the 6 months before the application is submitted.
• The fee is capped by regulation at up to $500 for co-decision-making.

The Alberta page also lists up to $500 for guardianship or trusteeship and $700 for combined guardianship and trusteeship. Applicants in financial hardship can contact the OPGT about the assessment fee. Fees and rules can change, so confirm the current amounts before you book an assessment.

Related options for personal and financial matters

Specific decision-making lets a nearest relative decide for an adult on listed matters. A nearest relative must have been in contact with the adult in the previous 12 months. Informal trusteeship is a less intrusive alternative to court-ordered trusteeship, and the Alberta page says to consider it first.

With no personal directive, the adult does not choose who decides. A healthcare provider may choose the nearest relative to decide on health care and temporary residential placement. A family member or friend may otherwise have to apply to court to become guardian. Without an enduring power of attorney, a family member or friend may need court to become trustee.

What to do next

• Talk with the adult first about what help they actually want.
• List the specific decisions that are causing difficulty, since capacity is decision-specific.
• Ask the adult's doctor about the medical exam and who can do the assessment.
• Check whether a personal directive or enduring power of attorney already exists.
• Write down what you have already tried, such as informal help, so you can explain it if guardianship is ever considered.
• Ask a lawyer whether co-decision-making or another option suits the situation before you consider guardianship.

If you later go to court for guardianship, the Alberta page says an 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.

Frequently asked questions