Adult guardianship is specific to an adult who needs to have someone legally assigned to make decisions for them (legal guardianship). Adults can lose capacity because of an accident, illness or old age. If an adult doesn’t have a Personal Directive and loses the capacity to make decisions, they will need someone to apply for legal guardianship in Alberta. Legal guardianship may also be required when a minor with a developmental disability becomes an adult. This process can be daunting and stressful, and working with guardianship lawyers from the start is a good idea.
However, it also helps to know what to expect. Here’s a quick look at the criteria you must meet and what else you can expect from the process.
Who can become the legal guardian of an adult?
To be a guardian you must:
- be over 18
- consent to be the guardian
- consent to having a criminal record check and provide personal references
Obligations of a guardian
Guardians are responsible to:
- make decisions in the best interests of the adult
- consider the views and wishes of the adult
- be available to make decisions
If there is no one suitable to be the legal guardian for an adult who needs a guardian, the Public Guardian may become the guardian for an adult.
The difference between guardianship and trusteeship
It is important to note that guardianship is different from trusteeship. A guardian is responsible for making personal decisions for an adult and a trustee is responsible for making financial decisions. While guardianship and trusteeship are often packaged together, they are not the same. You’ll want to consider carefully whether the situation demands both.
What are the first steps?
An application must be made to the Court to have someone appointed as a legal guardian for an adult. One of the first things you must be able to show the Court is evidence that the adult does not have the capacity to make their own decisions. Generally, a Capacity Assessment Report is required. A doctor, a psychologist or a designated capacity assessor can do this.
Once you have obtained a Capacity Assessment Report, the next step is deciding what type of application to choose. If the situation is relatively simple and you don’t expect anyone to oppose your application, you can choose to make a desk application. A desk application means you won’t need to appear in court and the judge will make a decision based on the application forms. You can choose to work with a lawyer to complete the application forms, or you can complete them yourself.
If you need to get legal guardianship quickly, or if the situation is complicated and someone might disagree with your application, you may want to choose to have a court hearing. A hearing means that either you or your lawyer will appear in court. The application forms still need to be completed correctly, but you or your lawyer will also have the opportunity to speak to the judge.
Making an effort to avoid disputes
Applying for guardianship and choosing who will have decision-making authority can be emotionally complex. It can lead to disputes and quarrels within families. Before beginning the process, it can be helpful to engage in conversation with everyone involved. Ideally, try to reach a consensus before starting your application. Otherwise, you may need to prepare for opposition to the application in court.
Exploring Your Next Steps Starts Today
Navigating through all the forms and court requirements doesn’t have to be a confusing source of stress. If you work with a lawyer, they will guide you through this process and ensure everything is completed correctly. They will also appear in court on your behalf if necessary. With professional help from the guardianship lawyers at Lypkie Henderson, you can find answers to your questions today. Let us help you evaluate the situation and determine the right way forward for your situation. Speak with us today to schedule an appointment.
