Adam Yauch's will reveals dilemma regarding naming a guardian

Guardianship of minor children is a real sticking point for parents who want to make wills that appoint an appropriate person to raise their children if the worst should happen and the parents are killed. I know of one couple who fought so much over this issue that they didn't actually end up making wills until their children were over the age of 18. That could have been a real disaster but luck was with them.

This article from www.Forbes.com talks about Adam Yauch's (of Beastie Boys fame) will and his problem naming a guardian for his daughter. But more than that, the article gives some excellent information for anyone thinking about who would be a proper guardian for a minor child. I highly recommend this article if guardianship is something you are currently working on, particularly if you and your spouse are not in agreement about the choice. Click here to read the article.

The attached photo of Adam Yauch with his wife and daughter is from UDV/London Features.

Can my will allow funds to go to guardian of my children?

This reader has asked a very good question about helping a guardian with the cost of raising minor children in the event that the child's parents have passed away. I know a lot of other parents wonder about the logistics of getting funds to the guardian too, so I think many of you will find this post interesting.

Here's the question:

"I'm preparing my will. I have 2 minor children. I've appointed a guardian for the 2 kids, in the event that my wife & I pass away. A trust will be set up for the kids. How do I specify or bequest funds to the guardian to help with the cost of raising my 2 kids? I assume the guardian cannot withdraw funds from the trust until kids reach legal age."

One of the real beauties of testamentary trusts (i.e. trusts that are set up in your will) is that you can tailor them to meet your needs. You will be able to arrange for your guardian to receive funds if that's what you want. May I add that I hope you are not trying to draft something as important as your children's financial futures by yourself. Ask an experienced lawyer for help with the drafting to avoid your kid's inheritances ending up as court fees.

First, let me clear up an error. You said that you assume the guardian can't withdraw funds until the kids reach legal age. That's not the case. The kids can't inherit until they are of legal age, but that certainly doesn't stop you from channeling funds to a guardian to help pay for their expenses.

Keep in mind that normally under a will the guardian of the children and the trustee of the children's money are two different people. The money is held in trust NOT by the guardian but by the executor/trustee. Look at your will. It gives powers to the trustee and places restrictions on the trustee in anticipation of the trustee safeguarding the children's inheritances.

There are three general ways in which guardians usually receive money under a testamentary trust. You can use any of them or all of them depending on your situation.

The first is to state in your will that a certain amount per month will be paid to the guardian on a regular basis. You would choose the amount by balancing out the amount the child will inherit, how long the trust is to exist etc. You would state the amount in the will. The money is to be used for the child's clothing, food, medications, and the child's share of household expenses.

The second is to provide the guardian with a lump sum of money at the time he or she takes over as guardian.The money would be used for something like renovating the guardian's home to make room for your children, or buying a larger vehicle to accommodate your children.

The third is to provide an encroachment on an as-needed basis on the funds held in trust. You can state the kind of thing that is to be considered, such as education expenses or living expenses. The guardian would have to ask the trustee for the money on behalf of the child, as the trustee is the one safeguarding the funds.

While considering this question, check your life insurance policies to see who you have named as beneficiaries. If you have named one or more of your children, the money is not going to be held by your executor. It will be held by the insurance company until the child reaches legal age, and paid all at once on the 18th birthday (or 19 in some provinces). If you want insurance money to be controlled by your executor on the same terms as the rest of your estate, you should look into naming the estate as the beneficiary.

I've boiled down some fairly complicated concepts to the bare bones here. I caution you again against trying to draft a trust on your own. While testamentary trusts are flexible, there are still a lot of rules to be followed in order to create a valid trust. I strongly urge you to talk this over in detail with an estate-planning lawyer.

Four reasons so many parents leave young children unprotected by their wills

Attached is a link to an excellent article found at http://www.pollexestateplanning.com/ that delves into the reasons that so many otherwise responsible parents fail to name a guardian for their young children in the event of the parents' death. I've met many couples over the years who tell me they haven't yet made wills because of the issues surrounding guardianship of the kids, so this article really rang true for me. Click here to read it.

Can my minor kids still live in the family home after I pass away?

Parents of minor children should name a guardian for the kids who would step in to look after the children if both parents passed away. They should also make arrangements in the will to look after the children's inheritance. 

But what about the family home? Some parents believe that to minimize the amount of trauma and upset the kids will experience should both parents die, the children should continue to live in the house where they currently live with their parents. Of course the children's guardian would live there too. Can the will direct that the home be kept for the children? Yes, it can, but as minor children cannot own title to real estate, another solution must be found.

That solution is a residence trust. Should both parents pass away while the children were minors, the executor would transfer the family home into the name of the parents’ estate. 

To bring this about, both parents would make Wills which contain the same provisions regarding the house. These provisions would be instructions that the house be held in trust on behalf of the children until a certain date. That date is usually when the youngest child reaches age 18 or 21, but can be another date that the parents choose.

If parents are considering setting up a residence trust, there is much more that needs to be thought about, talked about and included in the Will. Simply saying that the home is to be held for the children is not enough. This is one of those cases in which keeping things too simple can and will only cause problems.

Firstly, consider whether this plan is actually workable for everyone involved. If you are appointing a guardian who already has a spouse, children and home of his or her own, is it reasonable to ask the guardian to change his or her living arrangement to move in with your children? Would they have to leave a job in another city to carry out your request? Can your home accommodate everyone?

Secondly, consider the costs associated with a home. There is the annual payment of property tax and insurance. There is the cost of regular maintenance. There is the need to respond to unscheduled repairs due to weather conditions, fire or burglary. Finally, there is the cost of “consumables” such as electricity, heat, water, cable, internet and telephone.

In the Wills, the parents would have to make this money available. The costs of maintaining the house should not be borne by the guardians, since the guardians don't own the house. Even the cost of the guardian's consumables is shared with your children.

There are a couple of choices for making the money available, depending on what assets the parents own. Some parents set aside a lump sum in the trust itself, a dedicated amount of money that has no purpose other than to look after the house. Others might direct that the costs should be taken directly, as needed, from the money that the children will one day inherit. The second solution sounds the easiest, but what happens when the oldest child or children have already moved out, but the younger one still lives in the house, and costs are being taken equally from the children? Is that fair to the older ones?

Also consider what is to happen to the house once the trust ends. This has to be covered in the will if a residence trust is set up. Many parents want to transfer title to the children equally once they are all old enough and the guardian isn’t needed anymore. Experience has shown us a thousand times over that putting a home into the name of all the children almost never goes as well as the parents hoped it would. There might be a better solution in some cases. The children could be given an option to buy each other out using their inheritance. Or the will might give them the option to simply sell the house and split the money.

A final question to think about is what should happen to the house if all of the children move out before they are 21. Does the trust end early?

A residence trust can be a useful, workable option for some families, but it needs to be discussed in detail with an experienced lawyer.

Is it time to revisit your choice of guardian?

Wills lawyers are always telling their clients to review their wills from time to time to make sure that everything in the will still meets their needs. The choice of guardian is a crucial reason to revisit your will from time to time, as the example in this attached article describes. Click here to read it.

Selecting a guardian in the modern family

This post from Texas Wills and Trusts Online is fun to read, and even has a funny video to watch, but it also illustrates a very important point. The author of the blog, Rania Combs, states that many parents put off making a will because they can't decide who to appoint as guardian. This is so very true.

I recently did some estate planning with a couple who disagreed so deeply on who was to be appointed as guardian for the kids that they ended up not making a will at all until their youngest child turned 18. As they said to me, the disagreements were so bad that they had to make a choice to protect their marriage rather than make a will. Now that's an extreme case, I know.  But the inability to decide on a guardian does deter too many people from putting these important documents in place. My clients were extremely lucky that nothing happened to them while the children were younger.

Click here to read Ms. Combs' article.

Three life-planning moves you should make right now

I was interviewed by Today's Parent Magazine about estate planning for families with young children. That article is in the January 2011 issue. Click here to read it.

Alternatives to court-ordered guardianship and trusteeship for an aging parent

The legislation setting out policy and procedures for becoming a guardian and/or a trustee for aging parents is made provincially, not federally, so it differs across the country. One concept that is present in the legislation of most parts of Canada is that a full guardianship and trusteeship is a last resort. Other, less intrusive, means of helping an aging parent should be tried first, or at least considered.

The idea behind this is that taking away full control of a person's money and life is going overboard. It's like doing a major surgery when all you needed was a few stitches. The amount and type of help offered should be appropriate to the person's specific situation.

Now that we've established that looking at alternative solutions is a good idea, let's look more closely. What exactly are those alternative solutions?

Enduring (Continuing/Durable) Power of Attorney - this document allows a senior to choose the person who will make financial decisions once the senior loses the ability to do that for himself. It enables someone to do all of the things - and more - than someone could with a court appointment as trustee. It's cheaper and quicker, but best of all it allows the senior to exercise control over important decisions.

Health Care (Personal/Medical/Advance) Directive - this document allows the appointed person to make decisions about health care, medical procedures, place of residence and many more matters when the senior can no longer do that. Again, it allows the senior to choose who represents him.

Representation agreements/Supported decision making - under this kind of arrangement, the senior can choose someone to help him or her with decision-making to the extent that he or she wants help. Unlike powers of attorney or health directives, this arrangement enables the person to make decisions with the senior, rather than for the senior. This is available in one form or another in BC, Saskatchewan, Yukon and Alberta.

Informal trusteeship - this refers to an arrangement whereby a person gains legal authority over another person's pension or benefit income, to use those income sources on behalf of the person who owns them. He or she may collect the pensions, deposit them and use them to pay the owner's bills. Informal trusteeship is available for Old Age Security, Canada Pension Plan, Guaranteed Income Supplement, Spouse's Allowance, Survivor's Allowance and Veteran's Affairs benefits. I posted about informal trusteeship once before - click here to read it.

In-Home Support - (sometimes also called Aging in Place support) - this refers to any combination of medical services, housekeeping services, companionship and transportation that allows an aging person to continue living in his or her own house rather than moving to a seniors' residence. If the problems are more severe, medically speaking, the in-home care might have to be a full-time live-in caregiver.

Renovations to the senior's home - making appropriate renovations might make it possible for a senior to stay in his or her home longer, particularly when teamed with in-home support. A variation on this is to renovate the home of one of the senior's children and have the senior move in there.

Custodial bank account - this is a type of account offered at most banks that provides additional services, such as managing the investments, getting the annual tax return filed and paying bills.

Joint assets - those of you who read my blog often know that I'm not generally in favour of placing a senior's assets in joint names with anyone but his or her spouse, but from time to time it's the right solution. Placing assets in joint names gives both people a right of survivorship of the assets, so it should only be used when the senior has an opportunity to talk to a lawyer first.

Guardianship in blended families

Any parent making a Will is encouraged to appoint someone to become the guardian of the minor children in the event that both parents pass away. This is true of separated or divorced couples, as well as married couples. If one parent dies, the surviving biological parent has the right of custody of the children, so the guardianship appointment is really a back-up in case of both parents should die.

What happens when one of the parents re-marries after a divorce? Let's say that Eloise, mother of Jamie (5) and Sonia (7) has just married again. Eloise's Will is revoked automatically so any guardianship appointment in it is also revoked. The fact that Eloise has remarried doesn't affect the right of Jamie and Sonia's father to be their guardian should Eloise pass away. If Eloise's new husband adopts Jamie and Sonia, then their father's right would be extinguished. However, in most blended families the children are not adopted, largely because the biological parent (in this case the kids' father) won't agree to it.

As Eloise's Will has been revoked, she has to make a new one. She should name a guardian in it to look after the children should she pass away (and her ex had also passed away). Should she name her new husband? When I ask newly remarried parents this question, the answer is usually "not yet". The parent wants the new spouse to be the guardian at some point, but feels that the point hasn't yet arrived. And when does it arrive? Parents are pretty vague about that, but are adamant that the new spouse can't be named as guardian until the children and their new step-parent have had time to forge a strong relationship.

In the meantime, parents say, they'd rather name someone else as guardian. Eloise, for example, could name her sister, brother or close friend. They want to choose someone that their children already know and love.

This of course means that the Will is going to need amendment at some time in the future, but that is a small price to pay for the peace of mind of naming the right guardian.

Who will look after the kids?

Have you chosen the person or people who will be guardians of your minor children if you and your spouse both pass away? For most people, it's not an easy decision. Click here to read an article about some of the reasons deciding on a guardian can be so tough.

Watch for me in Today's Parent magazine

I was interviewed this morning by a reporter working on a story for Today's Parent magazine. We talked about why parents of young children need Wills, why it's important to name a guardian for minor children, what to consider when choosing a guardian and many, many more things. I always consider an interview to be a success if the reporter says "I didn't know that!" at least once, so this one was successful. The article won't be out for a couple more months, but I'll let you know once it's available.

Planning ahead can ease the process of adult guardianship

I'm attaching an article here that talks about a non-profit group in Texas that acts as legal guardian and trustee for adults who need that help, when appointed by the courts. I don't know of any Canadian equivalent. What do you think of this concept? In Canada, if you haven't planned ahead for your own mental capacity, the courts will likely appoint a family member or friend to represent you. If you don't have anyone who is able and willing to take this on, the remaining options are a trust company (for financial, but not health/medical/personal, decisions) or the Public Trustee and Public Guardian.

I completely agree with the author's comments that people should plan ahead. Most estate-planning lawyers consider planning for incapacity to be just as important as planning for passing away, and will encourage clients to prepare all needed documents.

Have you made legal guardianship arrangements for your disabled child?

When the parents of a disabled child think about estate planning, they of course consider the options open to them for Will planning. We'll get to those in a separate post, but in the meantime, the parents may also need to take some important steps that will take effect while they are still alive.

The first consideration is guardianship. I use this term as separate from trusteeship, or the custodianship of money. A guardian is someone who will look after where the disabled child lives, with whom the child lives, whether the child works on a paid or volunteer basis, and guides the child's daily life challenges such as grooming, transportation, education and entertainment.

Many parents reading the previous paragraph will dismiss it by thinking "we already do that for our child". It's possible that an informal arrangement works just fine for now. But what happens when you pass away? If your child is of the age of majority when you pass away, you can't appoint a guardian in your Will. You can do something about this while you are alive, if you wish to, but you cannot control it through your Will.

What if you should lose your mental capacity due to injury, illness or aging? Who will be making decisions for your child if you are having trouble making decisions for yourself? Would you like to have some input into who is put in charge of your child if you're not able to do it?

While your disabled child is a minor, there is no need for a guardian to be appointed, as the parents are automatically the child's guardians. Once the child reaches adulthood, however, it is a different matter. Adults are, in law, presumed to be competent to handle their own financial and non-financial affairs unless it is proved to a court of law that they are not. Therefore, as a parent, you may not have access to information or any control over decisions for your child once the child reaches the age of majority. This is where adult guardianship comes in.

In many cases, the disabled child doesn't have much in the way of assets while his or her parents are alive. Often the only asset that needs looking after is a monthly government benefit. If this is the case, it can be expensive and time-consuming to appoint a trustee who isn't really needed. However, a guardian to help with non-financial decisions most likely is needed.

In almost all provinces and territories, guardians may be appointed separately from trustees, so you can have a guardian appointed without going to the expense and trouble of having a trustee appointed. If you are the parents of a disabled child, you can both be joint guardians, but be sure to appoint a sibling or friend of the child as an alternate guardian for when both parents have passed away.

Make sure your estate planning includes a review of any and all steps you can take now to set matters up securely for your disabled child's future.

Answering your question - adult guardianship forms

I've been asked a couple of times now where people can find the forms they need to apply for guardianship or trusteeship of their aging parents. This is the subject of my book, Protect Your Elderly Parents, which contains a CD with all of the forms needed for every province and territory in Canada. It also includes sample forms for record-keeping and passing of trustee's accounts, as well as chapters on guardian's duties, trustee's duties, limitations on those roles, and how those legal appointments come to an end. Updates for Alberta are underway and will be available to those who buy the book at no extra charge. Click here to see more about the book. The feedback I've received is that it's very easy to use.

Another source you can look at is the webpage for the Office of the Public Trustee and/or Public Guardian for your province or territory.

What do people in a second marriage have to consider when making a Will?

Because I get so many questions about second marriages, and because it's so tricky to get estate planning right for individuals in this situation, I thought I'd talk a bit about some of the issues that specifically apply to people in second marriages. I'm not going to cover issues that apply to ALL married individuals, but only those that crop up with second or subsequent marriages.

Firstly, in some provinces, getting married automatically revokes an existing Will. If you made a Will after your divorce to look after your children, that Will was revoked when you re-married.

You'll realize when you start discussing your estate planning that you're going to have to carry out a balancing act between the various people in your life. You owe an obligation of financial support to certain people, including your spouse (married spouses in all provinces, common law spouses only in certain provinces), your minor children, and your children who are adults but who cannot earn a living due to a disability. This gets tricky for people in subsequent marriages because they often have two sets of children - one from each marriage.

I talked a bit more about that balancing act in a post here.

There are some other issues as well. For example, have you adopted your step-children? Typically people going into a second marriage only adopt their step-children if the children are quite young, but that varies. Understand that for the purposes of estate planning, non-adopted step-children have quite a different legal status than adopted step-children. If you don't make a Will at all, or the Will you have made is found to be invalid, this will make a huge difference to their rights.

If you do not make a valid Will, and your estate is to be divided among your spouse and your children, the word "children" here only includes blood or adopted children, and not step-children.

Also consider the beneficiary designations you've made on your life insurance policies and RRSPs. If you bought those items during your previous marriage, they probably designate your ex-spouse as the beneficiary. Perhaps that's what you still want, or what you are obligated to do as a result of your divorce settlement. In that case you don't have to change anything.

Most people, however, want to update their beneficiary designations to name their current spouse or perhaps the children. Do not assume that your divorce decree or your separation agreement changes those designations, because they do not. In some cases (a minority) the divorce or separation paperwork will specifically refer to a certain policy or account and talk about how it's to be dealt with; most do not. The generic wording of releasing all claims against the other's estate does NOT change beneficiary designations. You'll have to do that yourself if you want to change it.

Guardianship of minor children can also be an issue. You may have two sets of minor children who will likely have two different guardians. When you pass away, the children's other biological parent automatically has a right to custody, so you have to word any guardianship appointments for the children of your first marriage properly. I talked more about this in a post here.

For some people, leaving money in trust for the children of a previous marriage is an issue because they don't want their ex-spouse to have access to that money.

Finally, think about how the Dower Act might affect you. Most provinces in Canada have abolished the Dower Act but it's still in effect (for now, at least) in Alberta. This law gives a married (but not common law) spouse a right to live in the matrimonial home until he or she dies, moves out permanently or signs away that right. This can cause complications for someone with a current spouse who is trying to pass on property to children of a previous marriage.

If you are in, or soon to be in, a second (or subsequent) marriage, I strongly urge you to talk to an experienced estate planning lawyer to have an appropriate Will made. It's not a simple document but if properly done it will definitely save money and headaches for the people left behind after you pass away.

Is there an easy way for a guardian of an adult to keep records?

Many clients who are the guardians and/or trustees for adults tell me that they find it hard to keep up with record-keeping. We all know that trying to fill in details a week later (or, if we're honest, even more than a week in some cases) is not very effective. I'm often asked for ideas about a simple way to keep track that is easy and quick.

In this post I'm talking about guardianship record-keeping, as opposed to trustee (financial) record-keeping (which will be the subject of a future post). In other words, these are non-financial items that need to be recorded. They will include:

• appointments with doctors, therapists, dentists, geriatricians, etc


• dates involving legal matters such as granting of guardianship, or review


• moves to new home, long-term care, etc


• home visits for services including health care, cleaning, daily living etc


• phone calls to arrange services


• guardian appointment with government agencies or private providers


• applications or correspondence sent


• days that new treatments or medications were begun


• dates of surgeries


• visits to relatives, library, shops, restaurants etc


• requests made by the assisted adult


• dates of travel


• dates on which the assisted adult was ill, either severely or mildly (e.g. a cold)

The most simple way of recording all of these activities is to buy a daytimer book such as offices used to book appointments. Each book usually covers a year. They can be small enough to fit into a purse, briefcase or backpack. Have a book like this that is completely dedicated to the assisted adult and never write anything in it that does not apply to him or her in some way. In this book, record the information on the day it applies.

Most days you will probably not write anything. But on the days that you do, you can keep it simple by writing something like "Dr. Smith, for flu shot" on the day you take the assisted adult for his or her flu shot. It really can't get any simpler and easier than that. If you are ever asked by the courts to account for what you have done on behalf of the assisted adult, you will have a complete record at your fingertips. If you are ever asked by family members about when the assisted adult started their swimming lessons or discontinued a medical treatment, you will be able to find the answer right away. This book will also be handy when a doctor or other service provider needs to look back at what's been done.

You will find everything you need to know about both guardian record-keeping and trustee record-keeping in my book "Protect Your Elderly Parents".

Who should be guardian for your elderly relative?

Guardians for aging adults who need help with personal decisions are usually chosen from among that person's spouse, children, siblings, parents or close friends. The best choice for any individual will depend on who is available, who is suitable and who is willing to take on the job.

Guardianship is an interactive role. It's not a case of signing papers occasionally and never seeing the aging person. When considering candidates for guardianship, consider geographical distance. The guardian can't make day-to-day decisions in the aging person's best interests if the aging person has no opportunity to voice concerns or express preferences. Geographical distance can be the deciding factor if, for example, there are two chidlren who are both willing to be the guardian of their parent, while one of the children lives in the same town as the parent and the other child lives hundreds of kilometres away. The ultimate deciding factor is what's good for the parent, not what his or her children want.

Some questions other than geographical distance to consider when deciding who would be a good choice as guardian for an aging relative are:

• Is the guardian frequently unavailable because he or she is away on business or pleasure trips?


• Is the guardian already overwhelmed with other duties such as parenting or working?


• Is the guardian accessible to the aging relative in emergencies or times of stress?


• Is the guardian trustworthy?


• Do the aging relative and the guardian already have a compatible relationship?


• Is the guardian able to make important decisions without being unreasonably swayed by other family members?


• Has the aging relative ever expressed a preference as to who the guardian should be?

These notes were excerpted from my book called "Protect Your Elderly Parents".

Putting your home in a residence trust

Today's issue of Calgary Real Estate News is carrying an article I wrote about residence trusts. This refers to making a provision in your Will that after your death, your home will be kept in a trust for your children and their guardian to live in. There are more details to consider than you might think. To read the article, click here.

Is there a cure for Affluenza?

"Affluenza" refers to the effect on young people of inheriting too much money at too young an age. The symptoms include reduced ambition, lack of interest in working for a living, an inability to control frivolous spending and a failure to obtain any employable skills or education. A general rule is that the younger the heir of the money, the more severe the symptoms.

Parents are aware that a young person need not inherit multi-millions of dollars to catch affluenza. To a teenager who doesn't know the cost of houses or tuition, and hasn't even thought about boring adult stuff like life insurance and saving for retirement, even a reasonably large sum of money may seem like a gold mine. Parents want to ensure that they vaccinate their children against the affluenza bug.

What can parents do?

Well, there's always teaching them financial literacy while they are young, of course. But as I'm a Wills and Estates lawyer and not an expert on education, I'll confine my comments to what I know best. Here are some ideas that parents can use in their Wills:

1. Make sure that you do have an up-to-date Will, and that you do not name someone to be your executor if that person is too young to handle it. It's a lot of work and carries personal liability.

2. State the age at which your child or children should inherit the money. Otherwise they will inherit all of it the day they become adults.

3. Stagger the ages at which your child inherits, e.g. give 1/3 at age 18, 1/3 at age 21 and the balance at age 25.

4. If a child has an addiction or social problems that would interfere with his or her ability to safely look after money, put his or her share in a trust and have it looked after by your executor/trustee. You can set the terms of how much money they get, or for what purposes they are allowed to have money.

5. Don't be afraid to set up different arrangements for different children. Some may need a trust or staggered distribution while others may not.

6. Build in incentives. For example, if your executor is holding your child's share in trust to age 25, you could say in your Will that tuition and living expenses are to be paid starting at age 18 if the child is attending college full-time (and attaining passing grades - we don't want to create any perpetual students!).

7. If you've appointed a guardian for minor children with a monthly stipend to the guardian for the child's expenses, allow for that living arrangement to continue past age 18. If the child is living in a comfortable, loving household with the guardian, he or she would be better off staying there than having to move out simply because he or she turned 18. You could arrange in your Will for the monthly amount to the guardian to continue up to age 21 if your child wants to keep living there.

8. Don't try to control negative behaviour by setting unreasonable (and possibly unlawful) conditions on your children. For example, don't say that your daughter can only inherit if she stops smoking, or your son can only inherit if he never marries that horrible girl he is dating. These clauses don't hold up in law.

Consider having a brainstorming session with your estate-planning lawyer to come up with a personalized plan that will bring you peace of mind that you have done all that you can to ward off the affluenza epidemic.

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.