Planning for the future is essential for peace of mind, but many Albertans overlook the possibility of mental or physical incapacity. While personal directives and enduring powers of attorney provide vital safeguards, there are circumstances when adult guardianship and trusteeship become necessary. Here’s what you need to know about these legal tools and how they tie into your estate planning.

What is Adult Guardianship and Trusteeship?

Adult Guardianship grants someone (a guardian) the authority to make personal decisions for an adult who lacks capacity. These decisions might involve healthcare, living arrangements, or other non-financial matters.

Adult Trusteeship, on the other hand, allows someone (a trustee) to manage the financial and legal affairs of an adult who lacks capacity.

When Are They Needed?

Guardianship and trusteeship orders are typically sought when an adult becomes incapable of making decisions due to an illness, injury, or disability and does not have a personal directive or enduring power of attorney in place. Without these documents, family members or caregivers must apply to the court for the authority to act on the adult’s behalf, which can be a lengthy and costly process.

How Are These Orders Granted?

In Alberta, adult guardianship and trusteeship are governed by the Adult Guardianship and Trusteeship Act (AGTA). To obtain an order, the applicant must prove:

1. The Adult lacks capacity: A healthcare professional must assess and confirm the adult’s inability to make decisions.
2. A need for decision-making support: The court will evaluate whether the adult requires assistance with personal, financial, or both types of decisions.
3. The Applicant is suitable: The person applying to be the guardian or trustee must demonstrate that they are suitable and will act in the best interests of the adult.

The court’s primary concern is to ensure the adult’s rights and autonomy are respected as much as possible.

Why Are Personal Directives and Powers of Attorney Crucial?

While guardianship and trusteeship orders provide a safety net, they’re far from ideal. These processes can be time-consuming and stressful for loved ones. Creating a personal directive and enduring power of attorney as part of your estate plan is a proactive way to prevent this.

• A personal directive appoints someone to make personal decisions for you if you become incapacitated.
• An enduring power of attorney appoints someone to make financial decisions if you become incapacitated.

Having these documents in place allows your chosen representative to step in seamlessly, avoiding the need for court intervention.

Planning Ahead for Peace of Mind

For couples aged 25 - 45, estate planning often revolves around wills and life insurance, but it should also include incapacity planning. Taking the time now to establish a personal directive and enduring power of attorney ensures your wishes are respected, and your loved ones are spared unnecessary legal hurdles.

If you’re ready to start or update your estate plan, consulting with a legal professional can provide tailored advice to protect your future and your family.