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Wednesday, March 31, 2010

New Adult Guardianship & Trusteeship Act still mostly unknown

Alberta's new Guardianship and Trusteeship Act has been in place for about five months, replacing our old Dependent Adults Act. I'm still getting a lot of questions about whether this new Act simply re-names the old roles and leaves the process intact. It does much more than that. It now allows a variety of assisted decision-making arrangements which can be tailored to meet the specific needs of assisted adults. Not every impairment is the same and different people need different kinds of help.

The new decision-making arrangements now possible to help someone (known as the "assisted adult") make decisions are:

- Supported decision-making: This is the only one of the new arrangements that does not require a court order to be put into place. It's brought about by the assisted adult signing a form. It is appropriate for an assisted adult who still has most of his or her mental capacity but wants support to make certain decisions. Having this form in place does not authorize anyone to decide things for the assisted adult or to speak for them. The helper's role is only one of support. This arrangement is available for personal and health-care decisions and NOT financial decisions.

- Co-decision-making: This is intended for an assisted adult whose ability to make decisions is definitely impaired, but he or she can still make decisions with a lot of help. It fills that niche for assisted adults who need more than supported decision-making, but don't need a full guardianship or trusteeship. It requires the written consent of both the assisted adult and the helper, and is put in place by a court order. It is available for personal and health-care decisions but NOT financial decisions.

- Guardianship: This was available under the old Act but this version is much improved in terms of requiring more thought, planning and accountability by guardians. It requires a court order and appoints someone to make decisions on behalf of an assisted adult, without necessarily any input from that assisted adult. This is also intended for personal and health-care decisions and does not give any authority to deal with money or property.

- Trusteeship: This is still the only arrangement available for assisting an adult with decisions respecting money and property. It requires a court order, and like guardianship, takes the decision-making completely out of the hands of the assisted adult. Trusteeship has additional reporting requirements because it must account for all financial transactions.

The court's view is that the least intrusive solution available is the right one for any given adult. In other words, the court doesn't want to put a guardianship order in place if a co-decision-making order will do. The idea is to continue to allow the assisted adult to maintain independence and control over his or her own affairs as much as possible.

Needs may change over time. Where a supported decision-making arrangement works for someone right now, perhaps in a year or two it might have to be changed to allow for more assistance.

The best way to ensure that you are putting the right arrangement into place is to have an assessment report prepared. The report will make recommendations about the level of decision-making support that is needed.

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