Adult Guardianship & Trusteeship Act
If an adult does not have a personal directive or enduring power of attorney and then becomes or is incapable of managing his or her personal and financial matters, another individual must step in to manage things.
The Adult Guardianship and Trusteeship Act is provincial legislation that “provides an avenue for the care and supervision of a person through guardianship provisions and for administering the estate of an adult who, because of disability, is unable to look after his or her own personal or financial affairs.”
The Act contains five parts. The first covers definitions and the guiding principles of the Act. The second discusses supported decision-making, co-decision-making, guardianship, and trusteeship. Part three talks about specific decisions and emergency healthcare decisions while part four discusses general provisions such as capacity assessments, access to personal information, costs, etc. Part five has transitional provisions, consequential amendments, and other sections.
The Act defines capacity as “the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of
- a decision, and
- a failure to make a decision.”
Guiding Principles of the Adult Guardianship & Trusteeship Act
The Act has four guiding principles, briefly summarized as follows:
- Adults are presumed to have the capacity to make decisions until the contrary is determined
- Adults are entitled to communicate by any means by which they can be understood and the means are not relevant to determining whether the adult has capacity to make a decision
- Where an adult requires help to make a decision or does not have the capacity to make a decision, the adult’s autonomy must be preserved by ensuring the least restrictive and intrusive form of assisted or substitute decision-making
- When determining whether a decision is in an adult’s best interests, the adult’s wishes expressed when the adult had capacity and the adult’s values and beliefs held while the adult had capacity must be considered
Responsibilities of Guardians & Trustees
Under the Act, guardians must act in the best interests of the adults they represent, diligently and in good faith. They must encourage the adult to be responsible for their own care and make their own decisions, make the adult aware of the decisions they make for them, and act in the least restrictive way possible. They must also comply with the conditions, limits, or requirements set out in the guardianship order.
Trustees have broader authority than guardians and thus more responsibilities. For example, trustees cannot profit from dealings with the adult’s estate and must invest the adult’s estate according to the “prudent investor” rule. They have to keep detailed records of the adult’s assets and liabilities as well as receipts or disbursements connected to the adult’s estate.
How We Can Help
If you have questions about the Adult Guardianship and Trusteeship Act, talk to us. We can help you understand your rights and responsibilities as well as those of other parties so you can develop a plan for moving forward.