The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss the guardianship of a dependent adult under the Dependent Adults Act. Guardianship is the authority to make decisions for a dependent adult’s personal needs only.
Guardianship of a dependent adult gives you the authority to make necessary decisions for someone who is mentally incompetent to make their own decisions about:
- Where and with whom the person lives,
- Social activities,
- Education or training,
- Licenses or permits,
- Health care, and,
- Other day-to-day needs including diet and dress.
An adult person may suffer from small strokes, Alzheimer’s disease, mental retardation, mental illness or permanent brain damage due to an accident and become a dependent adult. Such a person needs protection from situations where he or she may be abused, neglected, manipulated or exploited.
If you decide that someone should make some necessary decisions for a dependent adult on personal and health matters, you may apply to the Court of the Queen’s Bench for a Guardianship Order. The Court’s Surrogate Section deals specifically with applications for guardianship and trusteeship under the Dependent Adults Act, enduring power of attorney, wills and estates.
You must serve a copy of the application, and the doctor’s reports 10 days before the hearing on certain persons:
- Nearest relative of the dependent adult
- The next nearest relative if the nearest relative is the one making the application to the Court
- The proposed guardian
- The person in charge of the place of care where the dependent adult lives
- The Public Guardian
- The Agent appointed in a Personal Directive
- The Attorney appointed in a Power of Attorney
- Anyone else the Court may find should be served.
A dependent adult is a person over the age of 18 years and has been declared by the Court to be unable:
- To take care of himself, and
- To make reasonable judgments regarding his own personal well-being
A report from a physician or psychologist confirming the patient’s inability to make responsible decisions for himself because of certain mental illness or condition is required by the Court in making its decision about a guardianship. The report must also recommend that a guardian be appointed to make such decisions for the patient. There are emergency provisions under the Dependent Adults Act that allow you to make an application to the Court without such a medical report. You may want to listen to topic 320 Where to make an Application for Compulsory Care. You may want to hire a lawyer to make such an application for you.
Usually a family member of the dependent adult makes the application. However, any interested person who meets the above requirements can apply. If there is no one who is able, willing or suitable to make the application, the Court may appoint the Public Guardian to act as guardian for the dependent adult. To be a guardian, you must be over the age of 18 and you must provide your written consent. The Court must be satisfied that you meet certain requirements:
- You will act in the best interest of the dependent adult, and give him every opportunity to become independent as much as he can;
- That you will not be in a conflict position where you may put your interests or priorities before the dependent adult; and
- That you are a suitable position to act as a guardian.
A desk procedure was introduced in November 1997 for certain types of non-contested applications under the Act. All you need to do is to file the necessary documents with the Court. The clerk will review the documents and present them to a Judge who will decide whether a Guardianship Order is to be issued. If no one objects to your appointment, you do not have to appear before a Judge when you apply
- To become a guardian for a dependent adult, or
- To review a previous Guardianship Order.
The applicant or the dependent adult usually pays for the application. If it poses a hardship on you, and if the dependent adult has less than $7,000 in liquid assets, the Government of Alberta may, through the Office of the Public Guardian, fund a portion of the legal fees and costs to a maximum of
- $325 plus disbursements for a desk application, or
- $375 plus disbursements if a Court hearing is involved.
A Guardianship Order must be reviewed in 6 years’ time after the Order or Review Order is issued.
Sometimes a shorter period for review may be specified in the Order. In any case, any interested person, including the dependent adult, may at any time ask the Court to review an Order. Only the dependent adult and the guardian may ask for a review every 6 months. At the review hearing, the Court will consider if the dependent adults still requires a guardian, and whether you have properly carried out your duties and responsibilities as a guardian. The Court may extend, change or end the Order.
Self-help kits for guardianship applications are obtainable from the Office of the Public Guardian. These self-help kits are not intended for contested application. You may wish to call one of the following numbers for further assistance: Calgary Office 403-297-3364, Edmonton Office 780-437-0017, Lethbridge Office 403-381-5648, Red Deer Office 403-340-5165 and elsewhere in the Province, you can call the Government RITE line (310-0000) to get connected with one of these offices.
If you wish to remove a guardian or to terminate an Order, you should consult a lawyer.