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 a Trusteeship Order.
A Trusteeship Order gives you powers and authority to make decisions concerning a dependent adult’s financial affairs. A dependent adult’s financial affairs includes all property owned by the dependent adult such as land and buildings, household articles, jewelry, cash, bank accounts, stocks, bonds, registered savings and other forms of investments.
Sometimes a Trusteeship Order is not required from the Court because authority has already been provided by other programs or by an Enduring Power of Attorney document, which appoints someone to act as trustee. Where a dependent adult has little or no assets and their only source of income is the monthly pay cheques issued under various government programs such as Canada Pensions Plan, Old Age Security, Veterans’ Pension and Assured Income for Severely Handicapped (AISH), you may arrange for a Trusteeship under the respective program. These types of trusteeship are commonly known as “informal trusteeship.” There is less formality in the requirement to keep and report on the dependent adult’s accounts. There is no need to involve the Court system for an informal trusteeship. The Court will not issue a Trusteeship Order if it feels that informal trusteeship is more appropriate for the dependent adult.
An “Enduring Power of Attorney” appoints you or someone else to make financial decisions for the dependent adult’s affairs. If there is one in place, you should consult a lawyer to see if you still need a Trusteeship Order for the dependent adult. The Enduring Power of Attorney may or may not give you the required authority you need to manage all of the financial assets of the dependent adult. For example, there may be assets accumulated after the Enduring Power of Attorney was made and the document did not provide the necessary authority to deal with such assets. Where there is no authority for you to act as trustee of a dependent adult’s financial asset, make your application to the Court for a Trusteeship Order. Where you believe there is an immediate danger of serious loss to the dependent adult’s estate, apply for an Interim Order to protect the assets.
Dependent adults are at least 18 years of age and may suffer from small strokes, Alzheimer’s disease, mental retardation, mental illness or permanent brain damage due to an accident. The Court must satisfy itself that the dependent adult is unable to care for themselves and unable to make reasonable judgments regarding their own personal finances by reason of their mental condition before issuing a Trusteeship Order. A report from a doctor or psychologist confirming the patient’s inability to make responsible decisions because of a certain mental illness or condition must be included in the Court application. The report must also recommend that a trustee 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. The procedure will not be discussed here and you should hire a lawyer to make such an application for you.
To be a trustee for the dependent adult, you must be over the age of 18 years and provide written consent with your application. The Court must also be satisfied that you meet the following requirements:
- You will act in the best interest of the dependent adult, and give them every opportunity to become independent as much as they can;
- You will not be in a conflict position where you may put your interests or priorities before the dependent adult;
- You are a suitable position to act as a trustee; and
- You live in Alberta.
Usually a family member of the dependent will apply. 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 Trustee or a trust company to act as trustee for the dependent adult.
You make this application to the Court of Queen’s Bench of Alberta. 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 notice of the application to the dependent adult, and others who may act on behalf of the trustee. For example, you must serve the dependent adult’s nearest living relative unless the dependent adult objects, the guardian, Personal Directive appointed agent, appointed attorney of Power of Attorney, Public Trustee, and anyone else the Court may direct.
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 Trusteeship 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 trustee for a dependent adult, or to review a previous Trusteeship 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 Trustee, 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.
Once appointed a trustee, you must familiarize yourself with the powers and authority given to you under the Order. As a trustee, you should review the Trustee Act to ensure that you understand what types of investments you can make for the dependent adult. You usually need additional authority from the Court for risky or important financial transactions such as investment in mutual fund or sale of the dependent adult’s home.
As a trustee appointed under the Dependent Adults Act, you must provide an accounting to the Court and appear before a Judge to approve your accounts usually once every two years. A Trusteeship Order must be reviewed in 6 years’ time. Sometimes a shorter period is 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. At the review, the Court will consider if you have properly carried out your duties and responsibilities as a trustee. The Court may extend, change or end the Order.
You can obtain a self-help kit for trusteeship applications and a “Precedents” Package from the Office of the Public Trustee. Call the office at 403-297-6541 if you are in Calgary and 780-427-2744 if you are in Edmonton. Elsewhere in the Province, you can call the Government RITE line 310-0000 to get connected to these numbers. The self-help kits are not intended for contested applications. If you wish to remove a trustee or to terminate an Order, you should consult a lawyer.