Caring for and Decision-Making for a Family Member

Law

When a loved one becomes ill or loses capacity, you may have many legal issues to consider. See the sections below to learn about:

  • The role of the caregiver
  • What capacity is
  • Options for helping a loved one with personal decision-making (including supported decision-making, co-decision-making, specific decision-making, Personal Directives, and Guardianship)
  • Options for helping a loved one with financial decision-making (including Powers of Attorney, Trusteeship, informal trusteeships, and joint tenancy of property)
  • Advance Care Planning and Goals of Care Designations
  • Planning for organ and tissue donation
  • Removing life support and medical assistance in dying
  • Other concerns: Digital assets, transportation, and housing options
  • Government benefits and assistance when caring for a loved one

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: July 2016
Who is this Information Page for?

This Information Page contains information about legal issues to consider when:

  • caring for an adult family member or other loved one; and/or
  • making decisions for an adult family member or other loved one.
Be Aware

This Information Page deals only with caring for adults, and making decisions for adults. For information about making decisions for a person under the age of 18, see the Children’s Rights Information Page.

There are many reasons why people may need to care for others or make decisions for them. For example: a person may have to look after:

  • aging parents;
  • adult children with disabilities;
  • people coping with mental health issues or addictions;
  • people with chronic illnesses; or
  • people in post-treatment or post-surgical recovery.

When caring for others, there are many law-related issues to consider. There is a broad range of legal tools described on this Information Page. Some are for people who only need a bit of help with their care or with their decision-making. Others are for people who have completely lost the ability to care for themselves, or make decisions for themselves. Over time, you may need to use more than one kind of legal tool.

In general, the law and process on this Information Page is for people who live in Alberta. This is because for Alberta law to apply, the adults who need help should live in Alberta. If a court in any other province, territory, or country has already made an order in your case, or if a move has occurred or is planned, please see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about caring and making decisions for others. For information on the processes you need to follow to help the adult in need, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

spouse

A person who is legally married to another person.

Adult Interdependent Relationship (AIR)

The term used in Alberta to describe what many people might think of as a “common-law” relationship.

A person is in an Adult Interdependent Relationship if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see below); or
  • for less than 3 years if they have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”).

Adult Interdependent Partner (AIP)

A person who is in an Adult Interdependent Relationship with another person.

Adult Interdependent Partner Agreement (AIPA)

A written contract in which 2 adults agree to become Adult Interdependent Partners. That contract must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation—see the following resource.

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

personal decisions

All decisions that are not related to money or finances. Examples include:

  • health care and medical treatment;
  • living arrangements (whether permanent or temporary);
  • who you can have contact with;
  • social activities;
  • educational, vocational, or other training;
  • employment; and
  • any legal proceedings not related primarily to money.

financial decisions

Decisions related to anything you can own (including money). This can include:

  • obtaining it;
  • getting rid of it;
  • handling it; or
  • keeping it safe.

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are 2 parts to mental capacity:

  1. The ability to understand the nature of a decision. This includes understanding all of the information that is relevant to a particular decision.
  2. The ability to understand the consequences of making a decision. That is, a person with capacity would understand what could happen as a result of making a certain decision.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor's opinion or a judge's decision).

Capacity Assessment Process (CAP)

A formal method of determining whether or not a person has lost capacity, as required by Alberta’s Adult Guardianship and Trusteeship Act. The CAP must be completed by a doctor, psychologist, or other health care professional specifically trained to be a “Capacity Assessor.”

The Capacity Assessment Process:

  • sets very specific and consistent testing standards;
  • focuses on the kinds of decisions that the adult needs to make; and
  • evaluates the level of assistance required.

This process must be used when applying for or reviewing any of the following:

  • Co-Decision-Making Orders;
  • Guardianship Orders; and
  • Trusteeship Orders.

supported decision-making

A process that allows an adult to name one or more other adults who will help make and communicate personal decisions. Supported decision-making is intended for people who may need a bit of help from someone they trust when making personal decisions, even though they still have capacity.

For more information, see the “Supported decision-making” section below.

co-decision-making

A process that allows an adult to ask the Court to name one or more other people to help make personal decisions. Co-decision-making is intended for people who need more significant help when making personal decisions, even though they still have capacity.

For more information, see the “Co-decision-making” section below.

specific decision-making

A process that allows medical staff to ask a loved one to make a decision for a person who has lost capacity. However, this option can only be used for certain time-sensitive decisions, and when there is no other decision-making arrangement in effect. In other words, when there is no Personal Directive or Guardianship Order in effect at the time (see below).

Specific decision-making is restricted to:

  • health care; and
  • temporary admission or discharge from a residential facility.

For more information, see the “Specific decision-making” section below.

Personal Directive

A document that gives someone else the legal power to make your personal decisions if you ever become unable to make those decisions for yourself. Personal decisions include health-related decisions. In other provinces and countries, this document might have a different name (such as “living will” or “Power of Attorney for Health”).

Maker

A person who signs a Personal Directive. For example: if you sign a Personal Directive that gives your sister the power to make your personal decisions for you, you are called the “Maker.”

Agent

A person who is given the power to make personal decisions for another person through a Personal Directive. For example: if you sign a Personal Directive that gives your brother the power to make your personal decisions for you, your brother is called the “Agent.”

Advance Care Planning

A process to help you think about, talk about, and write down how you feel about your future health care treatment. It includes having ongoing conversations with your family members, friends, and health care providers. This will help them to know the kinds of treatment you would agree to, or refuse. It is done in case one day you become unable to express your wishes, or make your health care decisions for yourself.

Even if you are still able to make decisions for yourself, Advance Care Planning can save you much stress in an emergency situation. You will already have thought about difficult topics and decisions.

Goals of Care Designation

A specific medical form used to describe the general aim or focus of medical care. It gives instructions that guide your health care team. This form is often completed as part of Advance Care Planning. Also, it can be completed as you are admitted for treatment.

Power of Attorney

A document that gives someone else the right to make financial decisions for you, and to act on your behalf for your financial affairs. This can include paying bills, dealing with your money, and selling your property. There are different kinds of Powers of Attorney:

  • An Immediate Power of Attorney takes effect immediately and ends at a specific date or after a certain decision has been made.
  • An Immediate and Enduring Power of Attorney takes effect immediately and continues if you become unable to make your own financial decisions.
  • An Enduring Power of Attorney (also called a “Springing Power of Attorney”) takes effect only when you become unable to make your own financial decisions.

Donor

A person who signs a Power of Attorney. For example: if you sign a Power of Attorney that gives your sister the power to make your financial decisions for you, you are called the “Donor.”

Attorney

A person who is given the legal power to make financial decisions for another person through a Power of Attorney. For example: if you sign a Power of Attorney that gives your sister the power to make your financial decisions for you, your sister is called the “Attorney.”

Be Aware

This term can also be used to refer to a lawyer (especially in the United States). However, an “Attorney” that is given decision-making power under a Power of Attorney is not the same thing as a lawyer.

to take effect

To start to apply. For example: a contract can be signed on March 15, but the terms of the contract may not start to apply until April 1. In this case, the contract “takes effect” on April 1.

“in good faith”

With good and honest intent. If something is done in good faith, it is done sincerely and honestly. If you act in good faith, you believe that what you are doing is right and legal, and you have no reason to question your motives.

joint tenancy

When 2 or more people own all of an asset together, that property is held in “joint tenancy.” Each person involved is called a “joint tenant.” For example: a joint bank account. Under joint tenancy, all of the joint tenants own all of the money in the bank account (not just their “share”). If one of the joint tenants dies, the entire account goes to the surviving joint tenant(s): the property is not part of the deceased’s estate.

tenancy in common

When 2 or more people own an asset together, but each owns a portion, that property is held in “tenancy in common.” Each person involved is called a “tenant in common.” For example: land. Under tenancy in common, each of the tenants owns a portion (or share) of the value of the land. If one of the tenants in common dies, that person’s portion does not automatically go to the other owner(s). Instead, that portion goes through the Will of the deceased.

digital asset

A person’s electronic or virtual property such as:

  • emails,
  • digital photos,
  • videos,
  • tweets,
  • texts,
  • music,
  • e-books, and
  • online account information for websites or programs such as Facebook, LinkedIn, Instagram, bank accounts, store accounts, PayPal, and any others.

Digital assets can have a financial value. For example, an online tool or website may make money or cost the owner something. Or, digital assets may only have sentimental value. For example, the photos of a family member.

Someone’s combined digital assets are sometimes also called their “digital estate.”

to hold property in trust

A relationship where one person (a “trustee”) legally holds property for the benefit of another person (a “beneficiary”). The trustee manages the property and collects income from the property, and then passes the income on to the beneficiary.

This happens often with children, because children are too young to hold and manage property themselves.

trustee

A person who legally holds property for the benefit of another person (who is called a “beneficiary”).

beneficiary

A person who gets money or property (a “benefit”) because they are named as the recipient of that benefit in a legal document. The benefit can come from different things, such as:

  • a life insurance policy;
  • someone’s Will; or
  • a trust. (A trust occurs where another person legally owns and takes care of the property for the benefit of the beneficiary.)

Trustee (under the Adult Guardianship and Trusteeship Act)

A person who is legally responsible for making financial decisions for a person who is not able to do so themselves. This does not include being responsible for personal decisions: those are made by the Guardian (see below). The same person can be both the Guardian and the Trustee, but they can also be different people.

A Trustee is similar to an Attorney under a Power of Attorney, but they are different.

  • A Trustee is appointed by a court, as a result of a court application under the Adult Guardianship and Trusteeship Act.
  • An Attorney is appointed by someone who signs a Power of Attorney (a court is not involved).

informal trusteeship

This is a less formal way of putting someone else in charge of handling some financial decisions. It is “less” formal because there is no requirement to keep track of and report the decisions that are made, and there is no need to involve the court system. Often it is less time-consuming and less expensive than other legal options (such as applying to the Court for Trusteeship). In general, informal trusteeships are offered at government departments and government-related agencies.

Although they are similar to Powers of Attorney, informal trusteeships do not work in exactly the same way. They do not use a “global” approach, where all types of financial decisions can be covered in one document. Instead, a separate informal trusteeship would need to be set up at every agency or government department that allows for these arrangements.

Public Trustee

A department (also called an “office”) of the government of Alberta that protects the financial assets and well-being of clients of the Office of the Public Guardian and Trustee.

Clients can include:

  • children under the age of 18 (the age of majority),
  • the estate of a deceased person,
  • adults without capacity,
  • prisoners, and
  • missing persons.

Generally, people become clients of the Office of the Public Guardian and Trustee through court orders, the requirements of the law, or when a family member applies on their behalf.

Guardian (under the Adult Guardianship and Trusteeship Act)

A person who is legally responsible for making decisions about the daily personal needs of an adult who is not able to do so themselves. This includes being responsible for medical decisions. This does not include the power to make financial decisions: those are made by the Trustee (see above). The same person can be both the Guardian and the Trustee, but they can also be different people. A person only becomes a Guardian when a court gives an order naming that person as a Guardian.

A Guardian is similar to an Agent named in a Personal Directive, but they are different:

  • A Guardian is appointed by a court, as a result of a court application under the Adult Guardianship and Trusteeship Act.
  • An Agent is appointed by someone who signs a Personal Directive (a court is not involved).

Public Guardian

A department (also called an “office”) of the government of Alberta that protects the health and personal well-being of clients of the Office of the Public Guardian and Trustee.

Clients can include:

  • children under the age of 18 (the age of majority),
  • the estate of a deceased person,
  • adults without capacity,
  • prisoners, and
  • missing persons.

Generally, people become clients of the Office of the Public Guardian and Trustee through court orders, the requirements of the law, or when a family member applies on their behalf.

Represented Adult

An adult who is the subject of a Guardianship Order and/or a Trusteeship Order. This means that decisions are being made for the adult by a Guardian (personal decisions) and/or a Trustee (financial decisions).

client or “elder in care” (under the Protection for Persons in Care Act)

A person who is receiving publicly funded services that support their physical or mental health. These services include:

  • nursing homes,
  • approved hospitals,
  • lodge accommodation,
  • mental health facilities,
  • certain shelters or hostels, and
  • day programs.

Indian Act

The main law through which the federal government administers Aboriginal issues, including:

  • “Indian” Status;
  • Status Indians’ Wills and estates;
  • First Nations’ governments;
  • band administration; and
  • the management of reserve lands and communal funds.

Indian

A person who has “Indian status” under Canada’s Indian Act. This term was originally used by Europeans to identify indigenous people of South America, Central America, and North America. Although it is no longer commonly used to refer to people of Canada’s First Nations, it is still the “legal” term required by the Indian Act.

Indian band (also called “First Nation”)

A group of Aboriginal people who:

  • have been declared to be a band for the purposes of the Indian Act (the Act defines certain Aboriginal people as “Indians”);
  • live on reserve lands that have been set apart for their collective use and benefit; and
  • have money held for them by the Government of Canada (also called “the Crown”).

Most bands hold reserve lands, but bands and band members do not legally own the land because the legal title belongs to the Crown and is “held in trust” (see the definition above) for the band by the Crown.

A more modern term used for a band is “First Nation.” The terms “band” and “First Nation” are also used to describe the government of the group and its reserve. Many band governments also represent members who live off-reserve. Bands can also govern non-band members who live on the band reserve and/or work for the band.

reserve

Land set aside under Canada’s Indian Act and treaty agreements for the exclusive use of an Indian band. Band members have the right to live on reserve lands, and band government and administration is often located there.

Indigenous and Northern Affairs Canada (INAC)

The federal government department that supports Aboriginal people (First Nations, Inuit, and Métis) in Canada. From 2011 to November 2015, this department was called “Aboriginal Affairs and Northern Development Canada” (AANDC). Because the change in name is still quite new, some resources and even the department’s own website may still show the old name. Before 2011, the department was called Indian Affairs and Northern Development (IAND).

The laws that may apply to you

You may wish to read the laws (also called “statutes” or “acts”) that apply to your situation. The laws included on this Information Page are:

Web Powers of Attorney Act
Government of Alberta
English




Web Nursing Homes Act (and associated Regulations)
Government of Alberta
English



Web Indian Act
Government of Canada
English


When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

If there are concerns about family violence or abuse

Do you have concerns about domestic violence or other abuse in your situation? It is very important to recognize and admit this, both to yourself and to any organizations you approach for help. Everyone involved must be kept safe.

Abuse can happen in many different situations. For example, abuse victims may be:

  • receiving care from publicly funded care facilities;
  • having decisions made for them because they are unable to make decisions themselves; or
  • providing care for an abusive family member.

If any of these situations apply to you, keep reading this section for more information.

Dealing with abuse

If you or the person you are helping have been the victim of domestic violence, some things to keep in mind:

Many of the resources on this Information Page have both general family law information as well as how that information applies in situations of family violence. Where appropriate, resources specific to situations of domestic violence are noted with this icon:

Family Violence

 

Be sure to read these resources thoroughly, because it is sometimes difficult to understand what to do in situations of violence without understanding the legal picture in general.

Dealing with abuse in care facilities

If your loved one is receiving publicly funded services that support their physical or mental health (also called being “in care”), they are protected from abuse under Alberta’s Protection for Persons in Care Act. If you believe that a person in care has been abused while in that care, you are required to report it as soon as possible. It is the law.

For more information about:

  • what situations are covered by the Protection for Persons in Care Act;
  • how to report abuse; and
  • what happens after you report abuse

see the “Dealing with abuse in care facilities: The Protection for Persons in Care Act” section below.

There is no legal requirement to report abuse that occurs in settings not covered by the Protection for Persons in Care Act. However, it is natural for you to want to help stop the abuse. For more information on services that can help, see the Family Violence: Resources to Help Information Page.

Dealing with abuse by substitute decision-makers

If your loved one is being abused by the person who is making decisions for him or her under a Personal Directive, Power of Attorney, Guardianship Order, or Trusteeship Order, there are processes to report the abuse. For information about reporting the abuser and requesting a court review of the arrangement, see the Process tab of this Information Page.

If you, as a caregiver, are being abused

Sometimes, you may find yourself caring for a person who has been abusive to you in the past. He or she may also still be abusive. This can be very challenging. For more information about how to deal with such a situation, see the following resources.


PDF Caregiver Challenges: Survivor of Past Abuse
National Clearinghouse on Abuse in Later Life
English

General information for caregivers

Depending on your situation, you may be:

  • already caring for another adult; or
  • considering caring for another adult.

Being a caregiver, which may include making decisions for someone else, is a big job. The following resources can help you understand your role, whether you are already a caregiver or only thinking about becoming a caregiver.

Caregiving in general

Web Federal/Provincial/Territorial Ministers Responsible for Seniors Forum
Government of Canada
English
See "Caregiving"

Web Forum fédéral, provincial et territorial des ministres responsables des aînés
Government of Canada
French
Voir : “Prestation de soins.”

PDF A Caregiver's Guide: A Handbook about End-of-Life Care
Canadian Hospice Palliative Care Association
English

Web Resources
Alberta Caregivers Association
English

Web Caregiver Resources
Carers Canada
English

Web Caring for the Caregiver.
Caregiving Matters
English

Web National Caregiving Organizations & Resources
healthexperiences
English

Web Find Your Caregiving Situation
Family Caregiver Alliance
Chinese, English, Korean, Spanish, Vietnamese
This resource is from outside Alberta. Learn more hereSee “Preparing for Caregiving” and “New to Caregiving.”

Audio I don’t have time for this.
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

Audio Families are complicated and necessary.
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

The following resources are not available online. The links below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book How to Care for Aging Parents: A One-Stop Resource for All Your Medical, Financial, Housing, and Emotional Issues
Virginia Morris
English
This resource is from outside Alberta. Learn more here. Get the full book from a library: The Alberta Library.

Book Caregiver's Guide for Canadians
Rick Lauber
English
This resource is from outside Alberta. Learn more here. Get the full book from a library: The Alberta Library.

Financial issues

The following resources have specific information about financial issues that may come up for caregivers.

Web Tax Issues for Older Adults
Centre for Public Legal Education Alberta
English

Web Resources for caregivers
Canadian Hospice Palliative Care Association
English
See “Financial Information.”

Web Ressources pour les aidants
Canadian Hospice Palliative Care Association
French
See “Renseignements financiers.”

Audio Tax Information for the incapacitated and their Substitute Decision Makers
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

The following resources are not available online. The links below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Financial Care for Your Aging Parent
Lise Andreana
English
This resource is from outside Alberta. Learn more here. Get the full book from a library: The Alberta Library.

Book How to Care for Aging Parents: A One-Stop Resource for All Your Medical, Financial, Housing, and Emotional Issues
Virginia Morris
English
This resource is from outside Alberta. Learn more here. Get the full book from a library: The Alberta Library.

Health care issues

PDF Let's Talk About Aging: Aging Well in Alberta
Government of Alberta
English

PDF Comfort, Hopes and Wishes: Making Difficult Health Care Decisions
Provincial Health Ethics Network
English

Interactive Health Equipment Loans
Canadian Red Cross
English

Interactive Programme de prêt à court terme
Canadian Red Cross
French

Web Other resources for caregivers
Alzheimer Society of Canada
English

Web If you’re a caregiver
Canadian Cancer Society
English

Web Caregiving
Huntington Society of Canada
English

Housing issues

PDF Adaptable Housing
Government of Canada
English

PDF Logements adaptables
Government of Canada
French

Web Aging in Place
Government of Canada
English

Web Vieillir chez soi
Government of Canada
French

Audio Navigating Seniors Housing & Care
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

Audio Selling Mom’s Home
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

The following resources are not available online. The links below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Estate Downsizing for Caregivers: Transitioning from a home to an apartment or care facility
Susan Bewsey
English
This resource is from outside Alberta. Learn more here. Get the full book from a library: The Alberta Library.

Book Aging Safely in Your Home
Yvonne Poulin and Gordon Morrison
English
Get the full book from a library: The Alberta Library.

Caring for the dying

PDF What to consider when caring for someone who is dying at home
General Practice Services Committee
English

PDF Caring for your loved one at home
Government of Prince Edward Island
English
This resource is from outside Alberta. Learn more here.

Web Resources for caregivers
Canadian Hospice Palliative Care Association
English

Web Ressources pour les aidants
Canadian Hospice Palliative Care Association
French

Web Support
Canadian Virtual Hospice
English

Web Soutien
Canadian Virtual Hospice
French
Before you begin: Understanding capacity

Before you begin caring for another person, or making decisions for another person, you need to understand the concept of “capacity” (also called “mental capacity”).

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are 2 parts to mental capacity:

  1. The ability to understand the nature of a decision. This includes understanding all of the information that is relevant to a particular decision.
  2. The ability to understand the consequences of making a decision. That is, a person with capacity would understand what could happen as a result of making a certain decision.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not.

Be Aware

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor’s opinion or a judge’s decision).

Capacity determines the legal options

When you are helping another person, you will need to know the level of his or her capacity. This is because the level of capacity affects the ways in which you can legally help that person:

  • Some legal tools can only be used before a person has lost capacity.
  • Some legal tools can only be used after a person has lost capacity.

The capacity “continuum”

Although the law treats capacity as a clear concept, we can see in everyday life that capacity is often not so obvious.

A loss of capacity may be clear and sudden. For example, if someone was in an accident and is now in a coma. In such a case, it is clear that that person cannot make decisions for themselves.

However, a loss of capacity will often be less clear and more gradual. For example, in the case of dementia.

With some conditions, capacity can vary or come and go. In other words, a person can flip back and forth between having capacity and not having capacity. This is especially true with older adults, due to factors such as:

  • the effect of medications and/or forgetting to take them;
  • diabetes and fluctuating blood sugar levels;
  • exhaustion;
  • time of day; and
  • alcohol or drug use (especially when combined with illness and/or medication).

In other words, capacity is more of a range (also called a “continuum”). At one end, there is the clear capacity to make a decision. At the other end, there is the clear incapacity to make a decision. In between, there is a range of “more” or “less” capacity.

Even when someone “technically” has capacity, there is a range of abilities. On some days, a person may just need a bit of help. For example, even though a person still has capacity, they might sometimes have difficulty understanding. As that person moves closer and closer to incapacity, he or she may need more and more help. This means that there is a range of abilities from having “good” capacity to having no capacity, and a person can move up or down in this range for various reasons.

When a person needs a bit of help, he or she may still be able to make some decisions. Whether a person has the capacity to make a particular decision depends on the kind of decision that needs to be made. For example, the capacity required to invest money is quite different from the capacity required to decide whether or not to take an exercise class. Also, a person’s capacity can change over time—especially when a person is suffering from a disease such as dementia.

Capacity is not about vulnerability or labels

Capacity is about understanding. It is not about being at risk or in need of care. Nor is capacity about labels such as: “old,” “disabled,” or “mentally ill.” It is very important to understand this difference.

For example:

  • just because you are 94 years old does not mean that you do not have capacity;
  • just because you have a disability does not mean that you do not have capacity;
  • just because you have been diagnosed with a mental illness does not mean that you do not have capacity;
  • just because you live alone and you are often quite ill does not mean that you do not have capacity; and
  • just because you have some memory loss does not mean that you do not have capacity.

Capacity refers only to the ability (or inability) to make decisions.

Capacity is not about agreeing with others

Sometimes a person who is ill or elderly may make decisions that their loved ones do not like, or do not agree with. Or, the person may make decisions that are different than those he or she might have made in the past. This does not necessarily mean the person has lost capacity. As adults, ill or elderly people have the same right as anyone else to make decisions for themselves, even if those decisions seem strange or incorrect to others.

More information about capacity

For more general information about capacity, see the following resources.


Web Understanding Legal Capacity In Alberta
Kahane Law Office
English
This is a private source. Learn more here.

Video Understanding Legal (Mental) Capacity
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

Web Capacity and Consent
Centre for Public Legal Education Alberta
English

Web When is a doctor's opinion on capacity required?
Estate Law Canada
English
This is a private source. Learn more here.

Video Brain Injury and Mental Capacity
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.

 

Family Violence

 

PDF Mental Capacity and Elder Abuse
Centre for Public Legal Education Alberta
English

PDF La capacité mentale et l'abus fait aux ainé-e-s
Centre for Public Legal Education Alberta
French

PDF Let's Talk: Elder Abuse - Resource Manual
Centre for Public Legal Education Alberta
English

PDF Parlons-en : L'abus fait aux ainé-e-s - Manuel de ressources
Centre for Public Legal Education Alberta
French

PDF Elder Abuse: Let's Talk
Centre for Public Legal Education Alberta
English

PDF L'abus fait aux aîné-e-s : Parlons-en
Centre for Public Legal Education Alberta
French
 

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Lear Redux: Capacity Litigation in the Twenty-First Century (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
What happens when a person without capacity signs legal documents?

Capacity is a tricky issue, and the law does not always require that capacity be tested. As a result, sometimes “planning” documents (such as Personal Directives and Powers of Attorney) are signed by a person who does not have the capacity to do so.

This can happen by accident. The person signing the documents may not realize that he or she does not have capacity. Or, a family member or a loved one who is trying to help might mistakenly believe that the person does have capacity.

However, sometimes it is not an accident. For example: the people involved may know that capacity has been lost, but they may still decide to go ahead, even though they know it is not appropriate.

At other times, there may even be bad intentions. For example: a family member or loved one may try to force someone who has lost capacity to sign a legal document in order to get control over them or their money.

If a person who does not have capacity signs a legal document, a court can declare that document invalid.

Court battles are expensive and time-consuming, and they can destroy family relationships. If you know that the person who is supposed to sign the document does not have capacity, it is not wise to go ahead anyway. You can get into serious legal trouble for doing so.

Family Violence

Forcing someone to sign a document can be abuse and can lead to criminal charges. This is true regardless of the age and capacity of the person signing. For more information, see the Elder Abuse Information Page.

If a person’s capacity is uncertain, that person should be tested by a medical professional. Contact his or her family doctor. You may also wish to learn about formal Capacity Assessments under the Adult Guardianship and Trusteeship Act. For more information, see the “Capacity Assessments under the Adult Guardianship and Trusteeship Act” section below.

If capacity is not yet completely lost: Planning for the future

When a person becomes unable to make their own decisions, someone else will need to take over and make those decisions. This is called “substitute decision-making.” Many people believe that the law says who will get this substitute decision-making power. For example: many people think that a spouse, parent, or a sibling will have automatic decision-making power. As a result, people often do not plan for such situations, and they do not complete the legal paperwork required to give anyone else decision-making power.

This belief is wrong. If a person becomes unable to make his or her own decisions, Alberta law does not provide any automatic substitute decision-making powers.

Instead, Alberta law looks to what the person has planned. For example, if the person had made a Personal Directive or a Power of Attorney. If the person did not plan anything, his or her loved ones will likely have to apply to the Court to be given permission to be a substitute decision-maker. This costs time and money. It can also cause family problems. Sometimes, there is more than one person who wants to make decisions. They may not agree with each other about what is best to do.

As a result, if the person that you are helping still has capacity, it is a good idea for that person to plan for a time when he or she loses capacity. It is also important for him or her to plan for death. As long as a person has capacity, he or she can still plan for a future illness and for death. He or she can still sign the legal documents that give someone else the power to make decisions for him or her. Once capacity is lost, it is too late. The person can no longer sign the legal documents.

Family Violence

Planning for illness is also important to keep people safe. Many legal tools give someone the power to help another person with their decisions, or make decisions for another person. These tools can help protect people from others who might take advantage of an illness to harm or steal. But in the wrong hands, these tools can also be used to abuse, as they give an abuser complete access to a person and/or his or her money, and the ability to shut other loved ones out.

For information about planning for incapacity and for death, see the following Information Pages:

Be Aware

If a person has already lost capacity, any legal document that he or she signs will not be valid.

Legal tools for help with decision-making: An introduction

In Alberta, there are several legal tools that can be used to help someone make decisions, or to make decisions on another person’s behalf. None of these tools are automatic. They require that certain steps be taken.

The options available to you will depend on the current mental capacity of the person who needs help. In general, the term “mental capacity” refers to a person’s ability to understand what they are signing. A detailed explanation of capacity is in the “Before you begin: Understanding capacity” section above.

A brief summary of the options is listed in the 2 sections just below:

  • “Legal tools for personal decision-making: An overview” and
  • “Legal tools for financial decision-making: An overview”

More detailed information about each of the options is in the sections that follow.

For summaries and charts comparing these options, see the following resources.


PDF Capacity Matters: Elements of Legal Tools
Centre for Public Legal Education Alberta
English

PDF La capacité importe-éléments des instruments juridiques
Centre for Public Legal Education Alberta
French

Web My parent can't manage alone anymore. What are my options?
Estate Law Canada
English
This is a private source. Learn more here.
Legal tools for personal decision-making: An overview

There are several legal tools that deal with personal decision-making. Some deal with all kinds of personal decision-making; some focus only on medical issues. Depending on the circumstances, an adult may use several of these tools over his or her lifetime.

Supported decision-making

This is an option for people who still have capacity, but who may need a bit of help from someone they trust when making personal decisions. The parties sign a document called an “Authorization.” For more information, see the “Supported decision-making” section below.

Co-decision-making

This is an option for people who still have capacity, but who need significant help in making personal decisions. The parties apply to court and, once an order is granted, they make decisions together. For more information, see the “Co-decision-making” section below.

Specific decision-making

This is an option that allows medical staff to ask a loved one to make a decision for a person who has lost capacity. This option can only be used for certain time-sensitive decisions, and when there is no other decision-making arrangement in effect. In other words, when there is no Personal Directive or Guardianship Order in effect at the time.

Specific decision-making is restricted to:

  • health care; and
  • temporary admission or discharge from a residential facility.

Personal Directive

This is a document that gives another person the power to make personal decisions for a person who is unable to make those decisions for himself or herself. Personal decisions include health-related decisions.

However, this option requires planning in advance. A person must complete a Personal Directive while he or she still has capacity. Then, when the person loses capacity, the Personal Directive can come into effect. Once this happens, the person named as the substitute decision-maker can begin to make personal decisions.

For more information, see the “Personal Directives and being an Agent" section below.

Guardianship and Temporary Guardianship

This is a court order that gives another person the power to make personal decisions for a person who is unable to make those decisions for himself or herself. Personal decisions include health-related decisions.

This legal tool is used when there has been no advance planning. It is for people who have lost capacity did not complete a Personal Directive while they still had capacity. This means they did not name a substitute decision-maker for themselves. Instead, a loved one must apply to the Court to get an order of Guardianship.

It is also possible to get an order for “Temporary Guardianship.” Temporary Guardianship is like Guardianship, but you can get it faster and it only lasts for a short amount of time. It is intended for situations when the adult is in danger of death or serious physical or mental harm, but:

  • that danger is not just about to happen or the danger is not serious enough so that treatment or specific-decision making is needed right away, or
  • it is about a kind of decision that is not covered by specific decision-making (see above).

In addition, Temporary Guardianship is generally only granted if the applicant also intends to apply for full Guardianship for ongoing issues as well.

For more information, see the “Guardianship” and “Temporary Guardianship” sections below.

Advance Care Planning

This is a process to help people think about, talk about, and write down how they feel about their future health care treatment. It includes having ongoing conversations with family members, friends, and health care providers. This can help such caregivers to know the kinds of treatment people would agree to, or refuse. It is done in case one day people become unable to express their wishes, or make health care decisions for themselves.

Advance Care Planning can take place when a person makes his or her Personal Directive. It can also be done with help through supported decision-making or co-decision-making.

For more information, see the “Advance Care Planning & Goals of Care Designation” section below.

Goals of Care Designation

A Goals of Care Designation is a specific medical form used to describe the general aim or focus of medical care. It gives instructions that guide a person’s health care team. This form can be considered as part of Advance Care Planning. However, Goals of Care Designations are generally completed when a person is about to receive medical care, so the health care team knows what that person wants at that moment.

For example: if a person gets admitted into the emergency department, medical staff can write a Goals of Care Designation as a medical order after speaking with that person about their wishes. This can happen whether or not the person has already done any Advance Care Planning. The Goals of Care Designation can also be created with help through supported decision-making or co-decision-making. Or, if the person has lost capacity and he or she has named an Agent in a Personal Directive, the Goals of Care Designation can be completed by the Agent.

For more information, see the “Advance Care Planning & Goals of Care Designation” section below.

Options for financial decision-making: An overview

The options for financial decision-making are very different than those for personal decision-making. Under Alberta law, there are no options for just “a bit of help” with financial matters when someone still has capacity. In other words, there is no “Supported Decision-Making Authorization” or “Co-Decision-Making Order” for financial decision-making.

This means that for financial decisions, there is not really a “continuum” of capacity: people either have capacity, or they do not. As a result, people sometimes use other legal tools to get “help” with financial decision-making (such as Immediate Powers of Attorney and informal trusteeships). These tools actually give a great deal of power to the “helper.”

Be Aware

The choices a person makes about financial decision-making can greatly affect their personal decision-making options. This is because once a person loses capacity for financial decision-making, and an Enduring Power of Attorney or a Trusteeship comes into effect, supported decision-making and co-decision-making will no longer be allowed.

Enduring (or “Springing”) Power of Attorney

This is a document that gives another person the power to make financial decisions for a person who is unable to make those decisions for himself or herself. This can be a “global” document, meaning that it can cover all types of financial decisions. Or, it can be just for certain kinds of decisions. For example: Your Power of Attorney could say that the Attorney can only make decisions about your real property, but not about your bank accounts or other investments. Or, a Power of Attorney you made through the Royal Bank would only be valid for decisions about money held at the Royal Bank.

However, this option requires planning in advance. A person must complete an Enduring Power of Attorney while he or she still has capacity. Then, when the person loses capacity, the Enduring Power of Attorney can come into effect. Once this happens, the person named as the Attorney can begin to make financial decisions.

For more information , see the “Powers of Attorney and being an Agent” section below.

Immediate Power of Attorney

These are Powers of Attorney that are signed by a person with capacity, and take effect immediately. This means that both the person giving the decision-making power (the “Donor”) and the person getting the decision-making power (the “Attorney”) can make financial decisions. Again, this can be a “global” document, meaning that it can cover all types of financial decisions. Or, it can be just for certain kinds of decisions. For example: Your Power of Attorney could say that the Attorney can only make decisions about your real property (such as land), but not about your bank accounts or other investments. Or, a Power of Attorney you made through the Royal Bank would only be valid for decisions about money held at the Royal Bank.

An example of when an Immediate Power of Attorney can be helpful is when a person goes away for an extended holiday. In such a case, the Donor could appoint someone to take care of his or her banking and other financial issues while he or she is away. The Donor could still deal with financial issues themselves, if they had to, but so could the Attorney. The Immediate Power of Attorney could end on the date the Donor gets back from holidays.

Be Aware

Immediate Powers of Attorney do not continue if the Donor loses capacity after it is in effect. In order to continue after incapacity, the Power of Attorney must say that it is also an “enduring” Power of Attorney: it would then be called an “Immediate and Enduring Power of Attorney.”

For more information, see the “Powers of Attorney and being an Agent” section below.

Trusteeship and Temporary Trusteeship

This is a court order that gives another person the power to make financial decisions for a person who is unable to make those decisions for himself or herself.

This legal tool is used when there has been no advance planning. It is for people who have lost capacity and did not complete an Enduring Power of Attorney while they still had capacity. This means they did not name a substitute decision-maker for themselves. Instead, a loved one must apply to the Court to get an order of Trusteeship.

It is also possible to get an order for “Temporary Trusteeship.” Temporary Trusteeship is like Trusteeship, but you can get it faster and it only lasts for a short amount of time. It is intended for situations when the adult is in immediate and serious danger of financial harm. Temporary Trusteeship is generally only granted if the applicant intends to apply for full Trusteeship for ongoing issues as well.

For more information, see the “Trusteeship” and “Temporary Trusteeship” sections below.

Informal trusteeships

This is a less formal way of putting someone else in charge of handling some financial decisions. It is “less” formal because there is no requirement to keep track of and report the decisions that are made, and there is no need to involve the court system. Often it is less time-consuming and less expensive than other legal options. In general, informal trusteeships are offered at government departments and government-related agencies.

Although they are similar to Powers of Attorney, informal trusteeships do not work in exactly the same way. They do not use a “global” approach, where all types of financial decisions can be covered in one document. Instead, a separate informal trusteeship would need to be set up at every agency or government department that allows for these arrangements.

For more information, see the “Informal trusteeships” section below.

Joint tenancy of property

The term “property” means both:

  • “personal” property, such as bank accounts or vehicles; and
  • “real property,” such as land, a house, or a condominium.

When 2 or more people own all of an asset together, that property is held in “joint tenancy.” In other words, when two people own something in joint tenancy, they both own all of it. This means that they each have the right to deal with all of it, any time they want. For example, if you and your child have a joint bank account, your child has the right to remove all of the money from the account without saying anything to you about it. That would be perfectly legal.

For more information, see the “Joint property” section below.

Supported decision-making

What it is

Supported decision-making is a process that allows an adult to name one or more other adults who will help make and communicate personal decisions. The parties must agree to the arrangement, but there is no need to involve the Court.

Be Aware

Supported decision-making is not available for financial decisions. Also, supported decision-making is not available for anyone who has already lost the capacity to make financial decisions. In other words, it is not an option if an Enduring Power of Attorney or Trusteeship Order is already in effect.

Who it is for

This process is intended for people who may need a bit of help from someone they trust when making personal decisions, even though they still have capacity.

Supported decision-making can be helpful for people who have complex decisions to make and have a medical condition that makes it very difficult to work through complex issues. For example: if someone has “bad” days where decision-making is hard and they need some help on those days. Supported decision-making is also helpful for people with mild disabilities (such as hearing loss or mobility issues) or who have communication difficulties.

For example:

  • Terry and Alex have been together for the last 30 years.
  • This is the second marriage for each of them.
  • They each have one child from their previous marriages.
  • They also have 2 children together.
  • Alex now has hearing trouble and has been diagnosed with dementia.

Supported decision-making could be a good tool at the beginning of the illness for many reasons, including:

  • Both would agree, and both can simply sign the required form.
  • At this point, neither feels ready to tell the children and extended family members about these problems. Instead, they would like a little bit of time to deal with it themselves as they plan for their future.
  • Alex can’t always understand others due to hearing trouble, and Terry can communicate much better with Alex than anyone else can.
  • Alex has good capacity most days. However, sometimes Alex’s memory is poor. Terry has the same memories and knowledge of their life, so Terry can remind Alex as necessary.

The issue of capacity

Although a person must still have capacity to sign a Supported Decision-Making Authorization, the law does not require that capacity be tested. If a person’s capacity is uncertain, that person should be tested by a medical professional.

For more information, contact his or her family doctor. You may also wish to learn about formal Capacity Assessments under the Adult Guardianship and Trusteeship Act. For more information, see the “Capacity Assessments under the Adult Guardianship and Trusteeship Act” section below.

How it is completed

To complete the process, the parties must sign a special form called a “Supported Decision-Making Authorization.” They do not need to complete any kind of capacity assessment, and they do not apply to a court.

Once the paperwork is complete, the person who is getting help with decision-making is called a “Supported Adult” and the person who is helping is called the “Supporter.” The parties keep a copy of the Authorization and present it as required. There is no need to register it anywhere, but it is common to provide a copy to the medical and care professionals that you will be dealing with.

For more information and the forms you will need, see the Process tab of this Information Page.

How it works

In supported decision-making, the Supporter does not make decisions: he or she only helps explain. There is no need for the Supporter to provide an opinion. However, a Supporter must keep a record of all of the decisions he or she helped with and must always act “in the best interests” of the Supported Adult.

Although it is possible for a person to “help” someone without the formal Supported Decision-Making Authorization in place, completing the legal paperwork has additional benefits. For example:

  • a Supporter has legal permission to access relevant personal information that might otherwise be protected under privacy laws; and
  • if there is only one Supporter, no one else is authorized to help with personal decision-making. This can be helpful if you are trying to protect the Supported Adult from someone else who might be abusive.

How it ends

As long as the Supported Adult still has capacity, he or she can decide to end the arrangement at any time. So can the Supporter. This is done by completing another form. If the person still needs a bit of help, he or she can complete a new Supported Decision-Making Authorization, appointing someone new as a Supporter. For more information about how to do this, see the Process tab of this Information Page.

Supported Decision-Making arrangements will also end automatically if:

  • the Supported Adult gets a Co-Decision-Making Order;
  • the Supported Adult loses capacity and his or her Personal Directive comes into effect; or
  • the Supported Adult loses capacity and becomes the subject of a Guardianship Order.

Things a person should consider when choosing a Supporter

For the person who needs help with personal decision-making, it is very important to choose the right person to be a Supporter. For information about things to consider when choosing a Supporter, see the “Supported decision-making” section of the Planning for Illness Information Page.

Things to consider when deciding whether to be a Supporter

Being a Supporter creates a formal relationship that comes with legal duties. Before deciding whether or not to be a Supporter, you should consider if you can do the job.

For example:

  • Are you at least 18 years old and do you have capacity?
  • Do you have a trusting relationship with the Supported Adult?
  • Will you be available to talk to, and go to appointments with, the Supported Adult when he or she needs you to?
  • Do you really know the Supported Adult and his or her needs?
  • Can you and the Supported Adult communicate well?
  • Can you communicate well with others?
  • Will you be able to keep track of the help you provide?
  • Do you want to share the work with another Supporter?

If you take the job, make sure you understand your duties

Sometimes, Supporters misuse a Supported Decision-Making Authorization because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

For example: many people do not know that Supporters must keep track of the decisions they help with. Before you start a supported decision-making arrangement, make sure you understand exactly what is expected of you.

As you will likely be helping with health care decisions, it is also important to understand issues around “consent” to treatment and what will be required by medical service providers in Alberta. For more information, see the following resources.

Web Capacity and Consent
Centre for Public Legal Education Alberta
English
See “Understanding Consent for Medical Treatment.”


More information

For more information about supported decision-making, including what duties a Supporter has, see the following resources.

PDF Supported decision-making brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English

Web Supported decision-making | How it works
Government of Alberta
English

Video Supported Decision Making Authorization
Government of Alberta
English


PDF Capacity Matters: Elements of Legal Tools
Centre for Public Legal Education Alberta
English

PDF La capacité importe-éléments des instruments juridiques
Centre for Public Legal Education Alberta
French

PDF Seniors and the Law: A Resource Guide
Alberta Civil Liberties Research Centre
English
Start on p. 42.

PDF Decision-making options brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian
Co-decision-making

What it is

Co-decision-making is a process that allows an adult to ask the Court to name one or more other people to help make personal decisions. The parties must all agree to the application. They apply to court together. Once an order is granted, they make decisions together.

Be Aware

Co-decision-making is not available for financial decisions. Also, co-decision-making is not available for anyone who has already lost the capacity to make financial decisions. In other words, it is not an option if an Enduring Power of Attorney or Trusteeship Order is already in effect.

Who it is for

Co-decision-making is intended for people who need more significant help, guidance, and support when making personal decisions, even though they still legally have capacity. In other words, they now have more “bad” days than “good” days.

To continue with the example of Alex and Terry from the “Supported decision-making” section above:

  • Alex is starting to have a lot of bad days.
  • Terry is getting worried because, more and more, Alex does not remember the decisions they made, and they argue about the decisions afterwards.
  • Alex is having more and more trouble with complicated matters.
  • The family (including all of the children) has now been informed of Alex’s decline in health.
  • Some family members disagree with the decisions that Alex and Terry have made together, and these family members are trying to pressure Alex to make different decisions.
  • Alex and Terry could apply for co-decision-making.
  • While the matter is processing, the Supported Decision-Making Authorization continues. It will be replaced by the Co-Decision-Making Order, when it is issued.

The issue of capacity

To get a Co-Decision-Making Order, the person needing the help must take part in a Capacity Assessment and be found to be “significantly impaired.” The Capacity Assessment:

  • focuses on the kinds of decisions that the adult needs to make; and
  • evaluates the level of assistance required.

The Capacity Assessment must be completed by a doctor, psychologist, or other health care professional specifically trained to be a Capacity Assessor. For more information about this process, see the “Capacity Assessments under the Adult Guardianship and Trusteeship Act” section below.

The Capacity Assessor will only look at the types of decisions where assessment is needed. For example, there may be no concerns about how the adult chooses his or her social activities, but there is concern about the adult’s ability to make health care decisions. In this situation, the Capacity Assessor would only assess the adult’s ability to make health care decisions.

How it is completed

Co-decision-making is completed by getting a court order. However, this does not mean that a court appearance will always be required. Often, you can do it with a “desk application” instead. A desk application allows the parties to get a court order without having to appear in court.

For co-decision-making, if the case is straightforward with nothing to be argued, the application can be made by submitting the appropriate paperwork to a Review Officer at the Office of the Public Guardian and Trustee. The Review Officer then completes a separate report on the application and files the application with the Court of Queen’s Bench. If the Court is satisfied with the information, the Court can grant the Order. However, the Court or a concerned adult can still request a hearing to decide the matter.

Once the Order is granted, the person who is getting the help with decision-making is called an “Assisted Adult.” The person who is helping is called the “Co-Decision-Maker.” The parties keep a copy of the Order and present it as required. It is common to provide a copy to the medical and care professionals that you will be dealing with.

For more information about applying for co-decision-making, see the Process tab of this Information Page.

How it works

Under co-decision-making, the Assisted Adult and his or her Co-Decision-Maker are required to make decisions together. A Co-Decision-Maker must help the Assisted Adult in communicating or carrying out decisions. For example, when making a health care decision, both the Assisted Adult and the Co-Decision-Maker would sign the consent form. All decisions must be made in the best interests of the Assisted Adult.

However, a Co-Decision-Maker cannot decide for the Assisted Adult. They must work through decisions together. If the Assisted Adult and the Co-Decision-Maker don’t agree on a decision, the Assisted Adult’s decision applies.

Also, a Co-Decision-Maker can only assist in making decisions about the personal matters listed in the Co-Decision-Making Order. They cannot assist with decisions on any personal matter not listed in the Co-Decision-Making Order or on any financial matters.

How it ends

As long as the Assisted Adult still has capacity, he or she can apply to end the Co-Decision-Making Order at any time. So can the Co-Decision-Maker. This is done by applying to the Court.

If the person still needs help, he or she can ask the Court for a different Co-Decision-Maker to be appointed. For more information about how to do this, see the Process tab of this Information Page.

Co-decision-making can also end if:

  • it is ended by the Court (and, if required, a new Co-Decision-Making Order can be given);
  • the Assisted Adult loses capacity and his or her Personal Directive comes into effect; or
  • the Assisted Adult loses capacity and becomes the subject of a Guardianship Order.

Things a person should consider when choosing a Co-Decision-Maker

For the person who needs help with personal decision-making, it is very important to choose the right person to be a Co-Decision-Maker. For information about things to consider when choosing a Co-Decision-Maker, see the “Co-decision-making” section of the Planning for Illness Information Page.

Things to consider when deciding whether to be a Co-Decision-Maker

Being a Co-Decision-Maker creates a formal relationship that comes with legal duties. Before deciding whether or not to be a Co-Decision-Maker, you should consider if you can do the job.

For example:

  • Are you at least 18 years old and do you have capacity?
  • Do you have a trusting relationship with the Assisted Adult?
  • Will you be available to talk to, and go to appointments with, the Assisted Adult when he or she needs you to?
  • Does you really know the Assisted Adult and his or her needs?
  • Can you and the Assisted Adult communicate well?
  • Can you resist the temptation to make the decisions for the Assisted Adult?
  • Can you communicate well with others?
  • Will you be able to keep track of the help you provide?
  • Do you want to share the work with another Co-Decision-Maker?

If you take the job, make sure you understand your duties

Sometimes, Co-Decision-Makers misuse a Co-Decision-Making Order because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

For example: many people do not know that Co-Decision-Makers must keep track of the decisions they make. Before you start a co-decision-making arrangement, make sure you understand exactly what is expected of you.

As you will likely be helping with health care decisions, it is also important to understand issues around “consent” to treatment and what will be required by medical service providers in Alberta. For more information, see the following resources.

Web Capacity and Consent
Centre for Public Legal Education Alberta
English
See “Understanding Consent for Medical Treatment.”


More information

See the following resources for more information about co-decision-making.

PDF Co-decision-making brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian


PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English

PDF Capacity Matters: Elements of Legal Tools
Centre for Public Legal Education Alberta
English

PDF La capacité importe-éléments des instruments juridiques
Centre for Public Legal Education Alberta
French

Web Co-decision-making | How it works
Government of Alberta
English

PDF Seniors and the Law: A Resource Guide
Alberta Civil Liberties Research Centre
English
Start on p. 44.

Video Co-Decision Making
Government of Alberta
English

PDF Decision-making options brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book The Adult Guardianship and Trusteeship Act: What Have We Learned? (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Specific decision-making

What it is

This is an option that allows medical staff to ask a loved one to make a decision for a person who has lost capacity. This option can only be used for certain time-sensitive decisions, and when there is no other decision-making arrangement in effect. In other words, when there is no Personal Directive or Guardianship Order in effect at the time.

Specific decision-making is restricted to:

  • health care; and
  • temporary admission or discharge from a residential facility.

Medical staff use specific decision-making to allow a relative to make a one-time urgent decision for an adult who lacks capacity.

Be Aware

Medical staff do not need to use specific decision-making to provide emergency treatment that would save a patient’s life or prevent serious harm. Emergency treatment can always be provided.

Who it is for

Specific decision-making is for people:

  • who do not have capacity at that moment;
  • who do not have any personal decision-making arrangements in effect (for example, a Personal Directive or a Guardianship Order); and
  • who need an urgent health care decision to be made, or an urgent decision about temporary admission or discharge from a residential facility.

The issue of capacity

Before using the option of specific decision-making, medical staff must first determine if the person in question can make the decision for himself or herself. This is like a brief capacity assessment that takes place immediately. The specific decision-making option can only be used if medical staff determine that the person does not, at that moment, have the capacity to make the decision.

How it is completed

As a first step, medical staff must assess the person’s capacity and determine that the person does not have the capacity to make the decision.

The Adult Guardianship and Trusteeship Act defines “nearest relative” by providing a list in the order that they should be considered. The medical staff chooses the “nearest relative” from this list. The list is:

  • spouse or Adult Interdependent Partner „
  • adult son or daughter „
  • father or mother „
  • adult brother or sister „
  • grandfather or grandmother „
  • adult grandson or granddaughter „
  • adult uncle or aunt „
  • adult nephew or niece „
  • the Public Guardian

To be able to make the decision, the relative must also:

  • be available and willing to make the decision;
  • have been in contact with the adult within the past 12 months;
  • be aware of the adult’s values and beliefs; and
  • be on good terms with the adult.
Be Aware

The “nearest” relative does not have to live close to the person who has lost capacity. As long as the relative meets the above requirements, he or she can make the decision.

The relative must then sign special paperwork that states that they can make the decision, and what that decision is. Health care providers and health care facilities have the forms that need to be filled out.

How it works

When making the decision, the decision-maker must consider the following things:

  • whether the adult’s condition or quality of life is likely to get better because of the proposed action;
  • whether the benefit of the proposed action is greater than the risk of harm;
  • whether a less restrictive or less intrusive action would be as effective and as beneficial as the proposed action; and
  • any wishes, values, or beliefs about the topic that were expressed by the adult while he or she still had capacity.

Once the paperwork is completed by the health care provider and the relative signs it, it takes effect immediately.

More information

For more information about specific decision-making, see the following resources.

PDF Specific decision-making brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 13-14.

Web Specific decision-making | How it works
Government of Alberta
English

Web Specific decision-making instructions
Government of Alberta
English



PDF Decision-making options brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian
Personal Directives and being an Agent

If you are helping a person who still has capacity, and that person wants to make a Personal Directive, the information he or she needs is in the “Personal Directives” section of the Planning for Illness Information Page. As a caregiver, you may also want to review this information.

The rest of the information in this section is intended for people who are:

  • appointed as Agents in someone else’s Personal Directive; or
  • considering accepting the job of an Agent in someone else’s Personal Directive.

What they are

A Personal Directive is a document that gives another person the power to make your personal decisions if you ever become unable to make those decisions for yourself. Personal decisions include health-related decisions. In some places, such a document is known as a “Living Will,” but in Alberta the correct legal term is “Personal Directive.”

Personal Directives can only be made if the person who makes it still has capacity. If you are helping a family member or a loved one who has already lost capacity, that person can no longer make a Personal Directive. Instead, there are 2 options:

  • If they do not already have a Personal Directive, and they need help with personal decisions, someone will have to apply for Guardianship (see the “Guardianship” section below).
  • If they made a Personal Directive while they still had capacity, you can now bring it into effect. Keep reading this section for information about how to do that.
Be Aware

Personal Directives do not cover financial decisions. For that you need a Power of Attorney. Personal Directives and Powers of Attorney are separate documents with different requirements: they cannot be combined.

Things to consider when deciding whether to be an Agent

Being an Agent creates a formal relationship that comes with legal duties. If you do not fulfill these legal duties, you could end up in court. Before deciding whether or not to be an Agent, you should consider if you can do the job, and if you want to do the job. It is best to be honest about this so the Maker can choose someone else if necessary.

If you did not know that the Maker appointed you, and the Personal Directive comes into effect, you do not have to accept the job. The responsibility will go to an alternate Agent the Maker named (if there is one), or someone may have to apply to the Court for Guardianship.

For detailed information about what to consider when deciding whether or not to take the job of being an Agent, see the following resources.

PDF Being an Agent in Alberta
Centre for Public Legal Education Alberta
English
See p. 2-4.

PDF Understanding Personal Directives booklet
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Ukrainian
Choose your language, then start on p. 7.

PDF Making a Personal Directive in Alberta
Centre for Public Legal Education Alberta
English
Start on p. 10.

PDF Personal Directives Information Package
Turning Point Law
English
This is a private source. Learn more here.

Bringing the Personal Directive into effect: Loss of capacity

If you have been named as an Agent in someone’s Personal Directive, there may come a time when you have to act as that person’s Agent. This will occur if the Maker loses capacity. However, you cannot start acting as the Agent until the Personal Directive has been “brought into effect.”

To bring a Personal Directive into effect, the Maker must be declared to have lost capacity. In general, the Maker will have said in the Personal Directive who will make that decision. For example: the Maker may have written that his or her family doctor should decide. Or, the Maker may have written that 2 separate doctors must both agree that capacity has been lost. If the Personal Directive does not say who will determine whether capacity has been lost, the Personal Directives Act says that the decision will be made by 2 “service providers.” At least one of these service providers must be a physician or a psychologist.

To declare incapacity, the person making the decision must complete a special form that is required by the Alberta Personal Directives Act. For more information about completing this form, see the Process tab of this Information Page and the following resource.


 

Once a Personal Directive is in effect, it is no longer possible for the Maker to revoke it unless he or she regains capacity. If the Maker or someone else wants to have an Agent removed from power, he or she would have to file a complaint with Alberta’s Office of the Public Guardian and Trustee. For more information about how to do that, see the Process tab of this Information Page.

The Personal Directive continues to apply as long as the Maker remains incapable of making his or her own personal decisions, or unless a court orders that it ends.

Be Aware

It is possible for an Agent to resign from the job. To do so, the Agent should inform everyone involved in writing. The Agent must also provide the new Agent or Guardian with the records from the time he or she was the Agent.

The Personal Directive will end if the Maker dies. This means that your powers as Agent also end if the Maker dies. At the moment of death, it is the person’s “Personal Representative” (named in the person’s Will or appointed by the Court) who takes over all decision-making power.

Make sure you understand the job of being an Agent

Sometimes, Agents misuse a Personal Directive because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

For example: many people do not know that Agents must keep track of the decisions they make. Before you start making decisions, make sure you understand exactly what is expected of you.

For more detailed information on the role of an Agent, see the following resources.

PDF Being an Agent in Alberta
Centre for Public Legal Education Alberta
English
See p. 10-11.

PDF Understanding Personal Directives booklet
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Ukrainian
Choose your language, then start on p. 10.

PDF Making a Personal Directive in Alberta
Centre for Public Legal Education Alberta
English
Start on p. 10.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Duties of Attorneys and Agents (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

 

As you will likely be helping with health care decisions, it is also important to understand issues around “consent” to treatment and what will be required by medical service providers in Alberta. For more information, see the following resources.

Web Capacity and Consent
Centre for Public Legal Education Alberta
English
See “Understanding Consent for Medical Treatment.”


Guardianship

What it is

Guardianship is a court-ordered legal relationship that allows a person to make personal decisions for another person.

When an adult has no capacity to make personal decisions, and has not prepared for that possibility by completing a Personal Directive, someone must apply for Guardianship. There is also the option in certain situations to apply for Temporary Guardianship. For more information, see the “Temporary Guardianship” section below.

An adult who is the subject of a Guardianship Order is called a “Represented Adult.” The person authorized to make personal decisions for the Represented Adult is called the “Guardian.”

Be Aware

It is possible to apply for both Guardianship and Trusteeship at the same time. Also, the same person can be both Guardian and Trustee.

Who it is for

Adult Guardianship is for any person over the age of 18 who has lost capacity. The Court may also make a Guardianship Order for a person who is not yet 18 years old, but will be within 12 months.

Before applying for Guardianship, you need to know whether the adult has a Personal Directive and what it says. This is because a Guardian and an Agent cannot share the responsibility for making the same decisions.

For example, the adult may have a Personal Directive that names an Agent to make decisions about their health care. However, no one was named to deal with their living arrangements and employment decisions. In this case, a Guardian could be appointed to make decisions about the adult’s living arrangements and employment, but not about the adult’s health care.

A potential Guardian must also be familiar with the adult’s values, preferences, opinions, and religious and cultural heritage. This is because a Guardian must make decisions based on these factors.

Usually a family member or loved one applies for Guardianship. If there is no one willing, able, and suitable to act as the adult’s Guardian, the Public Guardian may be appointed. However, this is usually more difficult. The Public Guardian cannot simply be named in a Guardianship application. There is a process that involves giving the Public Guardian both notice and an opportunity to make representations to the Court.

There can be more than one Guardian. If 2 or more people are applying to be Guardians together, they will need to decide how powers will be shared. For example:

  • Will one Guardian have authority over certain decisions, and the other Guardian have authority over other decisions?
  • Will both/all Guardians have to agree on every decision before it can be made?
  • Will they each be able to act separately on all kinds of personal decisions?

The issue of capacity

To get a Guardianship Order, the adult must take part in a Capacity Assessment and be found to have lost capacity.

The Capacity Assessment:

  • focuses on the kinds of decisions that the adult needs to make; and
  • evaluates the level of assistance required.

The Capacity Assessment must be completed by a doctor, psychologist, or other health care professional specifically trained to be a Capacity Assessor.

For more information about getting a Capacity Assessment, see the “Formal Capacity Assessments under the Adult Guardianship and Trusteeship Act” section below.

How it is completed

Guardianship is completed by getting a court order. However, this does not mean that a court appearance will always be required. Often, you can do it with a “desk application” instead. A desk application allows the parties to get a court order without having to appear in court.

If the case is straightforward with nothing to be argued, the application can be made by submitting the appropriate paperwork to a Review Officer at the Office of the Public Guardian and Trustee. The Review Officer then completes a separate report on the application and files the application with the Court of Queen’s Bench. If the Court is satisfied with the information, the Court can grant the Order. However, the Court or a concerned adult can still request a hearing to decide the matter.

For more information about applying for Guardianship, see the Process tab of this Information Page.

How it works

Once the Guardianship Order is in place, the Guardian can begin making decisions in the areas allowed by the Order. Depending on the adult’s needs, and areas where the adult lacks capacity, the Guardian may be able to make decisions about any or all of the following topics:

  • health care and medical treatment;
  • living arrangements (whether permanent or temporary);
  • who the adult can have contact with;
  • social activities;
  • educational, vocational, or other training;
  • employment; and
  • any legal proceedings not related primarily to money.
Be Aware

A Guardian can only make decisions in areas permitted by the Guardianship Order.

Guardians are expected to make decisions in the Represented Adult’s best interests and according to the beliefs, values, and wishes that the Represented Adult held while he or she still had capacity. Whenever possible, the Guardian should include the Represented Adult in the decision-making process.

The Guardian must act “diligently and in good faith.” This means that you must put careful, honest, and sincere effort into doing the job. In addition, a Guardian must keep the Represented Adult informed of his or her decisions, and must keep a record of those decisions.

The decisions of the Guardian must be followed. If they are not followed, the Guardian can apply to the Court of Queen’s Bench for an Order to “give effect to a decision” of a Guardian. This means that the Court can authorize steps needed to carry out the decision of the Guardian. This can include police involvement, if required.

The risk of abuse

Although a Guardianship Order is meant to be helpful, it can be used to abuse the Represented Adult. The Guardian has access to all personal information and will be making personal decisions. He or she can use the position to control the Represented Adult, to treat him or her poorly, and to shut out other people that the Represented Adult might have wanted included. If abuse is suspected, it is often quite difficult to prove, as no one but the Guardian has access to the information and documents around the decisions being made.

For this reason, if your loved one needs a Guardianship Order, you will want to think carefully about who would be the best person for the job.

You may also wish to ensure that the Order includes a review process on a regular basis. Under the Adult Guardianship and Trusteeship Act, there is no mandatory review period, but a review of a Guardianship Order must be held if:

  • the Order itself states a review date;
  • there has been a significant change in the Represented Adult, which may require a change or termination of the Order to be in the best interests of the Represented Adult; or
  • something changes with the Guardian’s situation so that a review of the Order is needed. For example, if the Guardian becomes too ill to do the job.

If you think your loved one is being abused under their Guardianship Order, trust your instincts and seek help. This will involve going back to court to have a judge look at the issue. An interested person may report abuse and apply for a review at any time. If the Represented Adult’s capacity is in question, the person applying must include a recent Capacity Assessment Report. Applications for reviews of Guardianship Orders also go through the Review Officer.

Family Violence

For more information about abuse and what you can do about it, see the Elder Abuse Information Page. Although that Information Page is about elder abuse, much of the information also applies in situations where the victim is not an older person. You may also wish to see the What is Family Violence? Information Page.

Make sure the Guardian understands the job

Sometimes, Guardians misuse a Guardianship Order because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

For example: many people do not know that Guardians must keep track of the decisions they make.

For more detailed information on the role of the Guardian, see the following resources.

PDF Guardianship brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 15-18.

Web Guardianship
Centre for Public Legal Education Alberta
English

PDF Decision-making options brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

Web Guardianship of an adult | How it works
Government of Alberta
English

Video Guardianship
Government of Alberta
English

PDF Guardianship fact sheet: General overview
Government of Alberta
English


Web Guardianship Services
Seniors Association of Greater Edmonton
English

PDF Seniors and the Law: A Resource Guide
Alberta Civil Liberties Research Centre
English
Start on p. 46.

Presentation Adult Guardian and Trustee Act (AGTA)
Caryn Wheeler
English
Family Violence

 

PDF Elder Abuse: If Plans Haven't Been Made
Centre for Public Legal Education Alberta
English

PDF L'abus fait aux aîné-e-s : Si aucune planification n'a été faite
Centre for Public Legal Education Alberta
French

 

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book The Adult Guardianship and Trusteeship Act: What Have We Learned? (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

 

As you will likely be helping with health care decisions, it is also important to understand issues around “consent” to treatment and what will be required by medical service providers in Alberta. For more information, see the following resources.

Web Capacity and Consent
Centre for Public Legal Education Alberta
English
See “Understanding Consent for Medical Treatment.”


Temporary Guardianship

Temporary Guardianship is like Guardianship, but you can get it faster and it only lasts for a short amount of time. It is intended for situations when the adult is in danger of death or serious physical or mental harm, but:

  • that danger is not just about to happen or the danger is not serious enough that treatment or specific-decision making is needed right away; or
  • it is about a kind of decision that is not covered by specific decision-making.

In such cases, a concerned person can apply to the Court of Queen’s Bench for Temporary Guardianship. The application process is quicker than the usual Guardianship application, and some of the usual application requirements do not need to be met.

Tip

It is a good idea to check with the Office of the Public Guardian and Trustee before applying for Temporary Guardianship. They will be able to tell you if another decision-making option might be better for your situation. See the following resource for contact information.

A Temporary Guardianship Order lasts up to 90 days. However, in certain circumstances, it can be extended for up to 6 months. During this time, the applicant can then complete the usual Guardianship application.

For more information about Temporary Guardianship, see the following resources.

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 15.

PDF What is the Adult Guardianship and Trusteeship Act (AGTA)?
Resourceful Futures Community Support Ltd.
English
See p. 2.


Web Dignity for Albertans: The Adult Guardianship and Trusteeship Act
Pritchard & Company
English
This is a private source. Learn more here.

 

For information about applying for Temporary Guardianship, see the Process tab of this Information Page.

Advance Care Planning & Goals of Care Designations

Advance Care Planning

Advance Care Planning (ACP) is a process to help people think about, talk about, and write down how they feel about their future health care treatment. It includes having ongoing conversations with family members, friends, and health care providers. This can help such caregivers to know the kinds of treatment people would agree to, or refuse. It is done in case one day people become unable to express their wishes, or make health care decisions for themselves. Talking about ACP with family members and loved ones may be hard, but understanding their wishes ahead of time will help you if they ever become ill. For you, it will help make a stressful time a little bit easier.

Although some of this kind of information can be included in a person’s Personal Directive, ACP provides much greater detail about that person’s wishes. It is an ongoing process. This helps to ensure that an Agent appointed in a Personal Directive will have the most up-to-date information about a Maker’s beliefs, values, and wishes.

Advance Care Planning is also important for the time before the Personal Directive takes effect. If your loved one is admitted to a hospital or other care facility, they will be asked to provide instructions about what level of care they want. This can be a very stressful moment. It is hard to think carefully and clearly when under such stress. It is even more stressful if that person has never thought about the issues before. Being suddenly faced with such important and urgent decision-making will be difficult for everyone involved.

For more information about ACP, see the following resources.

Web Advance Care Planning: Topic Overview
Government of Alberta
English

Web What is Advance Care Planning?
Canadian Hospice Palliative Care Association
English

Web Advance Care Planning Glossary
Canadian Hospice Palliative Care Association
English

Web Advance Care Planning / Goals of Care Are Connected
Alberta Health Services
English

Web Advance Care Planning: Conversations Matter
Government of Alberta
English

Interactive Advance Care Planning
Alberta Health Services
English

Web Make My Plan
Canadian Hospice Palliative Care Association
English

PDF Did you know? Advance Care Planning
Canadian Hospice Palliative Care Association
English

Web Frequently Asked Questions (about advance care planning)
Canadian Hospice Palliative Care Association
English

Web Advance Care Planning FAQ
Canadian Hospice Palliative Care Association
English

Web Advance Care Planning
Government of British Columbia
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more hereSee the “Brochures” section and choose “Aboriginal Health Advance Care Planning.” The link will automatically download onto your computer.

 

Videos

Video Advance Care Planning
Government of Alberta (via YouTube)
English

Video Five Steps of Advance Care Planning
Canadian Hospice Palliative Care Association (via YouTube)
English

Video Advance Care Planning: Videos
Canadian Hospice Palliative Care Association
Chinese, English, French, Punjabi

Webinar Previous Webinars
Canadian Hospice Palliative Care Association
English

Web Advance Care Planning
Fraser Health
Chinese, English, French, Punjabi
This resource is from outside Alberta. Learn more hereSee “Videos.”

Goals of Care Designations

A Goals of Care Designation is a specific medical form used to describe the general aim or focus of medical care. It gives instructions that guide a person’s health care team. The purpose of the Designation is to allow health care professionals to provide patients with the care that best reflects their wishes and values, depending on their health condition at the time. When a patient or his or her Agent completes the Designation, they would generally look to what was documented in Advance Care Planning to help decide what to choose.

However, when a person requires health care, a Goals of Care Designation will be completed even if he or she has never participated in Advance Care Planning. For example: if a person gets admitted into the emergency department, medical staff can write his or her Goals of Care Designation as a medical order after speaking with them about their wishes. This can happen whether or not the person has ever done any Advance Care Planning.

A person can change his or her Goals of Care Designation in the future if they want, or if circumstances change.

For more information about Goals of Care Designations and the things to think about when making one, see the following resources.

Web Advance Care Planning: Goals of Care Designations
Government of Alberta
English

Web Advance Care Planning: Conversations Matter
Government of Alberta
English

Video Goals of Care Designations
Government of Alberta (via YouTube)
English

Web Advance Care Planning
Fraser Health
Chinese, English, French, Punjabi
This resource is from outside Alberta. Learn more hereSee “Booklets and Brochures.”

 

For more information about completing a Goals of Care Designation, see the Process tab of this Information Page.

Removing life support and doctor-assisted death

There are 2 types of situations when medical decision-making is directly connected to a person’s death.

First, if a person is very badly injured, or becomes terminally ill, they may reach a point where they can only continue to live because they are put on machines that keep them alive. For example: a person may be on a machine that does their breathing for them. There may be a question about whether to continue this life support, or perhaps a question of whether to begin using life support at all.

Second, there are situations where a person knows that they want to die before their suffering becomes too great.

If you are caring for an ill or injured person, you may have been given instructions on what to do in such circumstances. For example, your loved one may have:

  • expressed their wishes to you through a Supported Decision-Making Authorization or Co-Decision-Making Order;
  • documented their wishes in the Advance Care Planning process; and/or
  • included their wishes in their Personal Directive.

Or, if your loved one still has capacity, they may be asking you to look into the issues now.

In certain circumstances, the law may be able to help with this.

  • Removing life support has been available for many years.
  • Doctor-assisted death is a new option that is still being developed.

What is the difference?

To understand your options, you need to know the difference between removing life support and doctor-assisted death.

An example:

  • Imagine a person with a very serious terminal illness. This illness will slowly kill the person. There is no cure. It is just a matter of time.
  • At some point, this illness will cause the person to be unable to breathe on his or her own.
  • Because of this and other effects of the illness, life will get very difficult and very painful.
  • At some point, this person will have to be hooked up to a machine in order to stay alive. This is called “life support.”

What is the removal of life support?

The removal of life support (sometimes also called “pulling the plug”) refers to the process of letting nature take over. If the person in the above example can no longer breathe on their own, they can be allowed to die. The machines that are keeping them alive can be turned off. Or, he or she may never be put on the machines in the first place.

In other words: it is only medical intervention that will keep the person alive. Without the medical intervention, he or she will die immediately, or very shortly. It can be decided that the medical intervention should not be given.

What is doctor-assisted death?

Doctor-assisted death works differently. This occurs when a doctor actively helps the person die. Assume that the person in the above example can still breathe on their own. Left alone, without any medical intervention, that person would continue to live. Possibly for weeks, months, or even years. But perhaps that person does not want to wait until they can no longer breathe on their own. They know that life will only become more and more painful and that death is unavoidable. They want to choose to die before the suffering becomes unbearable. They want to die at a time of their choosing, and on their own terms.

In other words: without medical intervention, the person will continue to live. It is only with medical intervention that the person will immediately die.

Keeping or removing life support

If your loved one still has capacity, it is up to them to make any decision about whether to stay on life support, or be removed from life support.

If your loved one has lost capacity and his or her Personal Directive is in effect, the Agent has the power to make these decisions.

  • The Agent must follow the directions given in the Personal Directive.
  • If there were no directions given on this topic, the Agent must make the decision that he or she feels the Maker would have made in the circumstances. The Agent will make this decision based on his or her knowledge of the Maker’s wishes, beliefs, and values about this topic.
  • If the Agent does not know the Maker’s wishes, beliefs, and values about this topic, the Agent must make a decision based on the best interests of the Maker at this time.
  • In addition, the Maker should be included in the decision-making process, to whatever extent is possible.

If your loved one has lost capacity and a Guardianship Order is in effect, the Guardian has the power to make these decisions.

  • Guardians must make decisions based on the Represented Adult’s best interests and on the wishes, beliefs, and values that the Represented Adult had while he or she was still capable.
  • In addition, the Represented Adult should be included in the decision-making process, to whatever extent is possible.

This issue is extremely delicate and emotional. Family members and loved ones may disagree on what should be done. For information that can help in the process, you can talk to a social worker, and see the following resources.

Web Understanding Healthcare Decisions at the End of Life
National Institute on Aging
English
This resource is from outside Alberta. Learn more here.

Web Removing Life Support
Fairview Health Services
English
This resource is from a private source outside Alberta. Learn more here.

Web Deciding to Withhold or Withdraw Life Sustaining Measures
About, Inc.
English
This resource is from a private source outside Alberta. Learn more here.

Doctor-assisted death

In Canada, it used to be illegal for doctors to help people end their own life (also called “commit suicide”). Under the Criminal Code of Canada, anyone who helped a person commit suicide could be charged with a crime. This included doctors.

However, in 2015, the Supreme Court of Canada (SCC) ruled that this section of the Criminal Code was unconstitutional, and it decided that doctor-assisted death should be allowed in certain circumstances. To make sure the practice was safe and fully considered, the SCC gave the federal government until June 2016 to make new laws about this topic.

The changes to the Criminal Code became law on June 17, 2016. As a result, it is now legal for doctors and nurse practitioners to help people end their own lives, if they follow certain conditions and safeguards. This means that medical assistance in dying (MAID) is available in Canada.

Who can get the help?

To be allowed to get medical assistance in dying, a patient must meet all of the following conditions. They must:

  • be eligible for health care (in other words, visitors to Canada are not eligible for MAID);
  • be at least 18 years old;
  • have the mental capacity to make health care decisions for themselves;
  • have a “grievous” (very serious) medical condition that is “irremediable” (cannot be reversed). This medical condition must also be in an “advanced state” of decline, which has resulted in their natural death being “reasonably foreseeable”;
  • be suffering enduring physical or psychological suffering that is intolerable to them, and that cannot be relieved by conditions that they find acceptable;
  • ask for MAID of their own choice (in other words, not as a result of outside pressure or influence); and
  • give “informed consent” to the MAID. This means the consent must be given after the patient has been given all of the medical information needed to make the decision (including information about all available treatments and options to lessen suffering).

As a result of these conditions, it is not possible to use a Personal Directive to plan in advance for MAID.

What kind of help is given?

There are 2 types of MAID available.

  1. The doctor or nurse practitioner prescribes a drug to the patient, and the patient then takes that drug on his or her own. This is often called “medically assisted suicide.”
  2. The doctor or nurse practitioner directly administers the drug to the patient (for example, with a needle). This is often called “voluntary euthanasia.”

Who can give the help?

Under the new laws about MAID, only doctors and nurse practitioners can give the drugs to the patient.

People who can help the doctors and nurse practitioners in the process include:

  • pharmacists;
  • health care providers who help both doctors and nurse practitioners; and
  • family members or other people that you ask to help.
Be Aware

In Alberta, Catholic hospitals are currently refusing to provide MAID. This means that patients in such hospitals will have to move before being able to access MAID.

How can this help be asked for?

For detailed information about how your loved one can ask for MAID, and what will happen if they do, see the Process tab of this Information Page.

More information

For more information about MAID, see the following resources.

Web End-of-life care
Government of Canada
English

Web Soins en fin de vie
Government of Canada
French

PDF Medical Assistance in Dying
Centre for Public Legal Education Alberta
English

Web Medical Assistance in Dying: An Enormous Change in Canadian Social Policy
Centre for Public Legal Education Alberta
English


Web Provincial guidelines for medical assistance in dying
Estate Law Canada
English
This is a private source. Learn more here.

For more information about Alberta guidelines, see the following resources.

Web Medical Assistance in Dying
Alberta Health Services
English

Web Medical Assistance in Dying
College of Physicians & Surgeons of Alberta
English

Organ and tissue donation

Organ and tissue donation involves removing organs and tissues from someone and either:

  • transplanting them into other people who need them; or
  • using them for research or medical education.

Organs and tissue for transplant can come from a “live” donor. For example: one person may give a kidney to another person and both people can continue to live. On this Information Page, however, we are dealing with the topic of organ and tissue donation by people who have just died. This is often called “deceased donor donation.”

If you are caring for a loved one, or making decisions for a loved one, you will need to understand this information. You may be asked about organ donation while your loved one is still alive.

Be Aware

If your loved one plans to donate their body to science, then they cannot also donate internal organs.

The difference between organ and tissue donation

Organ donation

Examples of organs that can be donated include:

  • the heart,
  • lungs, and
  • kidneys.

Sometimes, organs for donation can come from someone whose heart has just stopped beating. This may be called “donation after circulatory death.” This is currently quite rare, as the lack of blood flow through the organs means that the organs quickly become unusable.

In general, donor organs come from people who have suffered “brain death.” Brain death occurs when a person’s heart is still beating but there is no brain activity anymore. Machines and medications keep the heart beating and blood flowing to the organs. This is called “life support.” The donor is then kept on the machines until the organs can be removed. More information about brain death is below—see the “Asking after death” heading.

Tissue donation

Examples of tissues that can be donated include:

  • the skin,
  • bone, and
  • corneas.

People who die when their hearts stop beating generally cannot donate organs (as described above). However, they can be considered for tissue donation. People who donate tissues do not need to be on life support. Tissue can usually be donated up to 24 hours after death.

Medical staff must ask about donation: It’s the law

When a person has died or is very close to death, that person, or the person’s loved ones, may be asked about donating some tissues or organs to help others.

In fact, medical staff are required to ask. This comes from section 7 of Alberta’s Human Tissue and Organ Donation Act. It says that the medical practitioner who makes the pronouncement of death must consider if the person’s tissue or organs are suitable for transplantation. And, the medical practitioner must document in the person’s medical record that this was done.

Ideally, the person would have thought about this issue in advance, and:

  • made his or her wish to donate known by signing the back of their Alberta health care card;
  • registered with the Alberta Organ and Tissue Donation Registry; and/or
  • included his or her wishes in a Personal Directive.

However, this is often not the case.

Asking before death: When organ donation was pre-planned

If death is expected, the topic will sometimes be brought up before death. That way, when the time comes, everyone is ready for what must be done.

If the dying person has arranged for organ donation in advance, the process will be simple. The decision has already been made. Medical staff will already know. Or they can be informed and the proof of the decision will be included in the medical record. Although some loved ones may disagree with the decision of the person who is dying, the person has made the decision and medical staff will want to respect that decision.

Asking before death: When organ donation was not pre-planned

If the dying person still has capacity

The dying person may not have planned in advance. But if he or she still has the capacity to make the decision, then he or she can either agree to donate or refuse to donate. Some loved ones may disagree with the decision of the person who is dying. However, as long as the dying person still has capacity, he or she can make this choice. Medical staff will want to respect that decision.

If the dying person does not have capacity

On the other hand, the dying person may no longer have capacity. Then medical staff may ask a person who has the authority to make decisions for the person who is dying. This can be either:

  • the Agent(s), if the person who is dying completed a Personal Directive; or
  • the Guardian(s), if the person who is dying is the subject of a Guardianship Order.

If a Personal Directive is in effect, the Agent(s) can only agree to donation if that Personal Directive contains clear instructions that allow the Agent(s) to do so. This is a requirement of section 15 of Alberta’s Personal Directives Act.

If a Guardianship Order is in place, the Guardian(s) can only agree to donation if the Guardianship Order allows the Guardian to make this kind of decision.

Be Aware

Consent to donation must be given in writing. If the dying person has not already consented, medical staff will be able to provide you with the required forms.

If a dying adult does not have capacity, and there is no Personal Directive or Guardianship Order, section 4(2) of Alberta’s Human Tissue and Organ Donation Act states who is allowed to make the decision. These people are listed in the order they would be considered (this is called the “priority class”):

  • the spouse or Adult Interdependent Partner of the person if they are not “estranged” (see definition below);
  • an adult child of the person;
  • a parent or guardian of the person;
  • an adult sibling of the person; and
  • any other adult “next of kin” of the person.
Be Aware

The Human Tissue and Organ Donation Act says “estranged” means “living separate and apart for a year or more.”

The people listed above cannot give consent to donation if they know that any of the following apply.

  • The dying person would have refused to give consent.
  • A person in a higher priority class is available to give consent.
  • A person in the same class would refuse to give consent.

If the dying person is a minor

If the dying person is a minor, the decision about donation can be made by the minor’s guardian(s) who have authority to make the decision. However, there may be more than one guardian. In this case, one guardian cannot give consent if he or she knows that any other guardian would not consent.

Asking after death

Sometimes, especially in the case of a sudden or unexpected death, the question of donation only comes up after the death of the donor. In many cases, this will be after “brain death.”

Brain death can be very confusing for families, especially if it is sudden. This is because people who are brain-dead and on life support will still feel warm to the touch. They will also seem like they are breathing, as a ventilator may be pushing air into the lungs, making the chest rise and fall. In other words, they still look “alive.” When this happens, families sometimes expect that their loved one can be kept on the ventilator in hopes that their condition will improve. But to be brain-dead is to be dead: no improvement or recovery is possible.

Brain death is a clinical, measurable condition. Medical staff conduct many different kinds of tests to make sure that there is no longer any brain activity. The decision about brain death is not based on someone’s opinion or personal feelings. Nor is it random. It is based on facts.

Loved ones may be able to watch as some of these tests are conducted. In most cases, none of the doctors involved with pronouncing the death can have anything to do with organ donation and transplantation. In fact, they may not even know whether the patient is a donor or how the family feels about donation.

No organs or tissue can be removed until after the donor has been pronounced dead (which includes brain death).

Be Aware

Once a person is declared brain-dead, loved ones are not asked about taking that person off of life support (also commonly called “pulling the plug”). This is because stopping the life support does not lead to the death. The person they loved has already died.

If donation was pre-planned

If the dying person has arranged for organ donation in advance, the process will be simple. The decision has already been made. Medical staff will either already know, or they can be informed and the proof of the decision will be included in the medical record. Although some loved ones may disagree with the decision of the deceased, the deceased has made the decision and medical staff will want to respect that decision.

If donation was not pre-planned

If the deceased did not plan in advance, medical staff will ask the deceased’s family members. Section 4(2) of Alberta’s Human Tissue and Organ Donation Act states who is allowed to make the decision. These people are listed in the order they would be considered (this is called the “priority class”):

  • the spouse or Adult Interdependent Partner of the deceased if they were not “estranged” (see definition below);
  • an adult child of the deceased;
  • a parent or guardian of the deceased;
  • an adult sibling of the deceased; and
  • any other adult “next of kin” of the deceased.
Be Aware

The Human Tissue and Organ Donation Act says “estranged” means “living separate and apart for a year or more.”

The people listed above cannot give consent to donation if they know that any of the following apply.

  • The deceased would have refused to give consent.
  • A person in a higher priority class is available to give consent.
  • A person in the same class would refuse to give consent.

If the deceased is a minor

If the deceased is a minor, the decision about donation can be made by the minor’s guardian(s) who have authority to make the decision. However, there may be more than one guardian. In this case, one guardian cannot give consent if he or she knows that any other guardian would not consent.

How this fits with “pulling the plug”

“Pulling the plug” refers to taking someone off of life support. Removing the life support leads to the death.

When a person who is on life support is declared brain-dead, stopping the life support does not lead to the death. He or she has already died. Therefore, this situation is not called “taking a person off of life support.”

However, sometimes people with brain injuries never become brain-dead because they retain some minor brain function. For example: being in a coma or in a persistive vegetative state may not lead to brain death. In these situations, families may be asked about the removal of life support. This would then lead to the heart stopping (also known as “cardiac death”).

If people who die in this way made the decision to be donors, or their families are interested, organ donation may be an option. This is called donating organs after cardiac death, or “non-heart beating” donation.

This option may be brought up with families after it is clear that their loved one cannot recover. Donation in such cases entails taking the patient off the ventilator, typically in an operating room. Once the patient’s heart stops beating, the doctor pronounces the patient dead and organs can be removed.

More information

For more information about organ and tissue donation, including information about brain death, see the following resources.

PDF Comfort, Hopes and Wishes: Making Difficult Health Care Decisions
Provincial Health Ethics Network
English
See Part 4.



Web Organ & Tissue Donations
Alberta Funeral Service Association
English


Video Dead Enough
CBC
English

Powers of Attorney and being an Attorney

If you are helping a person who still has capacity and that person wants to make a Power of Attorney, the information he or she needs is in the “Powers of Attorney” section of the Planning for Illness Information Page. You may also want to review this information.

The rest of the information in this section is intended for people who are:

  • appointed as Attorneys in someone else’s Power of Attorney; or
  • considering accepting the job of an Attorney in someone else’s Power of Attorney.

What they are

A Power of Attorney is a document that gives another person the power to make your financial decisions for you.

There are different kinds of Powers of Attorney:

  • An Immediate Power of Attorney takes effect immediately and ends at a specific date or after a certain decision has been made.
  • An Immediate and Enduring Power of Attorney takes effect immediately and continues if you become unable to make your own financial decisions.
  • An Enduring Power of Attorney (also called a “Springing Power of Attorney”) takes effect only when you become unable to make your own financial decisions.

In other words, a Power of Attorney is similar to the Personal Directive that is required for personal decisions. However, some kinds of Powers of Attorney can be used before incapacity. This is not possible with a Personal Directive.

A Power of Attorney can only be made if the person making it still has capacity. If you are helping a family member or a loved one who has already lost capacity, that person can no longer make a Power of Attorney. Instead, there are 3 options:

  • If they do not already have an Enduring Power of Attorney, and their finances are quite simple, you may be able to make financial decisions using only informal trusteeships, without applying for Trusteeship (see the “Informal trusteeships” section below).
  • If they do not already have an Enduring Power of Attorney or informal trusteeships in place to deal with financial issues, someone will have to apply for Trusteeship (see the “Trusteeship” section below).
  • If they did make an Enduring Power of Attorney while they still had capacity, you can now bring it into effect. Keep reading this section for information about how to do that.

A Power of Attorney does not cover personal or medical decisions. For that you need a Personal Directive: see the “Personal Directives” section above. Personal Directives and Powers of Attorney are separate documents with different requirements: they cannot be combined.

Be Aware

Powers of Attorney do not work in the same way for Status Indians. For more information, see the “Aboriginal matters and on-reserve considerations” section below.

Things to consider when deciding whether to be an Attorney

Being an Attorney creates a formal relationship that comes with legal duties. If you do not fulfill these legal duties, you could end up in court. Before deciding whether or not to be an Attorney, you should consider if you can do the job, and want to do the job. It is best to be honest about this so the Donor can choose someone else if necessary.

If you did not know that the Donor appointed you, and the Power of Attorney comes into effect, you do not have to accept the job. The responsibility will go to an alternate Attorney the Donor named (if there is one), or someone may have to apply to the Court for Trusteeship.

For detailed information about what to consider when deciding whether or not to take the job of being an Attorney, see the following resources.

PDF Being an Attorney under an Enduring Power of Attorney
Centre for Public Legal Education Alberta
English

PDF Making an Enduring Power of Attorney
Centre for Public Legal Education Alberta
English
Start on p. 10.

PDF Enduring Powers of Attorney Information Package
Turning Point Law
English
This is a private source. Learn more here.

Web Power of attorney can get messy
Financial Post
English

Bringing an Enduring Power of Attorney into effect: Loss of capacity

If you have been named as an Attorney in someone’s Enduring Power of Attorney, there may come a time when you have to act as that person’s Attorney. This will occur if the Donor loses capacity. However, you cannot start acting as the Attorney until the Enduring Power of Attorney has been “brought into effect.”

To bring an Enduring Power of Attorney into effect, the Donor must be declared to have lost capacity. In general, the Donor will have said in the Enduring Power of Attorney who will make that decision. For example: the Donor may have written that his or her family doctor should decide. Or, the Donor may have written that 2 separate doctors must both agree that capacity has been lost. If the Enduring Power of Attorney does not say who will determine whether capacity has been lost, the Powers of Attorney Act says that the decision will be made by 2 medical practitioners.

To declare incapacity, the person making the decision must state in writing that capacity has been lost. For more information about this, see the Process tab of this Information Page.

Once a Power of Attorney is in effect, it is no longer possible for the Donor to revoke it unless he or she regains capacity. If the Donor or someone else wants to have an Attorney removed from power, he or she would have to apply to the Court of Queen’s Bench.

Enduring Powers of Attorney continue to apply as long as the Donor remains incapable of making his or her own financial decisions, or unless a court orders that it ends. An immediate Power of Attorney ends on the date or event described in the document.

Be Aware

It is possible for an Attorney to resign from the job after it has started. To do so, the Attorney must apply to the Court of Queen’s Bench for permission to resign (also called “renouncing”). The Attorney must also provide the new Attorney or Trustee with the records from the time he or she was the Attorney.

The Power of Attorney will end if the Donor dies. This means that your powers as Attorney also end if the Donor dies. At the moment of death, it is the person’s “Personal Representative” (named in the person’s Will or appointed by the Court) who takes over all decision-making power.

Make sure you understand the job of being an Attorney

Sometimes, Attorneys misuse a Power of Attorney because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

For example: many people do not know that Attorneys must keep track of the decisions they make. Before you start making decisions, make sure you understand exactly what is expected of you.

In general, an Attorney’s powers can include:

  • paying bills;
  • depositing and investing money on the Donor's behalf; and
  • selling the Donor's property.

However, an Attorney cannot:

  • change the Donor’s Will;
  • make a new Will for the Donor;
  • make a new Power of Attorney on the Donor’s behalf; or
  • use the Donor’s property for other people (for example: gifts to others, or charitable donations) unless the Donor has specifically given the Attorney the power to do so.

For more detailed information on the role of an Attorney, see the following resources.

PDF Being an Attorney under an Enduring Power of Attorney
Centre for Public Legal Education Alberta
English

Web The Duties of an Attorney
Patriot Law Group
English
This is a private source. Learn more here.

Web Executor, Trustee, And Attorney Compensation
Huffington Post Canada
English

Web What may a person acting under a Power of Attorney charge?
Estate Law Canada
English
This is a private source. Learn more here.

Web Mom's in a nursing home; can we sell her house and divide the money?
Estate Law Canada
English
This is a private source. Learn more here.


Audio Avoiding Power of Attorney Disputes
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

Audio Avoiding negative financial repercussions
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

Audio Working with a bank
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

Audio Selling Mom’s Home
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

Audio Estate Planning: Can you do it for the person that you are responsible for?
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Duties of Attorneys and Agents (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Informal trusteeships

What they are

An informal trusteeship is a way for a person to give someone else the power to act for them in some financial matters. It is “informal” because there is no requirement to keep track of and report the decisions that are made, and there is no need to involve the court system. Often it is less time-consuming and less expensive than other legal options.

In general, informal trusteeships are offered at government departments and government-related agencies. For example: the Canada Pension Plan (CPP) or Old Age Security (OAS). They are intended as an easy solution for people whose financial situation is not very complicated. For example:

  • Bob’s only income is CPP and OAS.
  • Every month Bob uses his income from CPP and OAS to pay his bills.
  • Bob does not have any other financial assets that need to be managed.
  • With an informal trusteeship at both CPP and OAS, someone else can cash Bob’s cheques and pay his bills.

Although they are similar to Powers of Attorney, informal trusteeships do not work in exactly the same way. They do not use a “global” approach, where all types of financial decisions can be covered in one document. Instead, a separate informal trusteeship would need to be set up at every agency or government department that allows for these arrangements. Each informal trusteeship is only valid at the individual agency or government department. The paperwork, and the exact rules about how they work, is different for each agency or government department.

Be Aware

Not every agency or government department allows informal trusteeships.

Who they are for

People who have lost capacity

In general, informal trusteeships are meant for people who:

  • have lost the capacity to make their own financial decisions,
  • do not have an Enduring Power of Attorney in effect,
  • do not have much income and property to manage, and
  • have finances that are not complicated enough to be worth the trouble of getting a Trusteeship Order from the court.

People with diminished financial capacity

Sometimes adults still have capacity, but would benefit from the help of a person they trust when completing financial transactions (such as banking and paying bills). However, under Alberta law, there are no formal options for “a bit of help” with financial decisions prior to incapacity. This means that for financial decisions, there is nothing like supported decision-making or co-decision-making (as described above). In other words, for financial issues, there is not really a “continuum” of capacity: you either have capacity, or you do not.

Because of this, if an adult needs some help and really can’t deal with financial issues on their own, the only alternatives available to them under Alberta provincial law are to either:

  • bring an Enduring Power of Attorney into effect (if that adult signed a Power of Attorney); or
  • become the subject of a Trusteeship Order (if that adult did not sign a Power of Attorney).

If either of these things happen, Alberta law deems that the person has lost capacity for all purposes. As a result, supported decision-making and co-decision-making will no longer be available to them.

However, if that adult has informal trusteeships in place to help deal with their financial matters (and therefore does not start to use an Enduring Power of Attorney or Trusteeship Order), they can still use supported decision-making or co-decision-making for their personal decisions.

For this reason, people who have diminished capacity sometimes use informal trusteeships to get help with their financial issues while keeping some control of their personal decisions.

Be Aware

Informal Trustees actually have a great deal of financial decision-making power—far more than the power given under supported decision-making or co-decision-making. Specifically, if an adult has an informal trusteeship at an organization, as far as that organization is concerned, the person has lost capacity to deal with his or her assets at that organization. As a result, that organization may not be willing to take any kind of instructions from that adult anymore. Instead, they will only take instructions from the Informal Trustee.

The issue of capacity

The agencies, organizations, and government departments that allow informal trusteeships will generally ask for a medical certificate, signed by a doctor, that indicates that the person in question has lost capacity (or has diminished capacity).

How they are completed

To set up informal trusteeships, you must contact each agency or government department separately and fill in each of their forms. Each organization will have its own forms. Often, each organization will have 2 separate forms:

  • a medical form, signed by a doctor, that indicates that the person who needs help has lost capacity (or has diminished capacity); and
  • a form in which the person who will be the Informal Trustee agrees to properly administer the money.
Be Aware

Once the informal trusteeship is in place, the agency or government department will likely only follow the directions of the Informal Trustee unless you provide medical proof that the adult has capacity. Also, informal trusteeships are not governed by a single law, so each agency or department will handle them differently. This can make it difficult to make a complaint if either party has trouble with the arrangement.

How they work

Once the paperwork is completed, the person named as the “Informal Trustee” can make decisions on behalf of the person in question. However, the Informal Trustee can only deal with the asset or benefit related to the particular organization or government department with whom they signed the paperwork. Unlike with a Power of Attorney, an Informal Trustee cannot sell the person’s property, deal with their investments, handle their bank accounts, or sign contracts on their behalf.

Things to consider when choosing an Informal Trustee

For the person who needs help with financial decision-making, it is very important to choose the right person to be an Informal Trustee. For information about things to consider when choosing an Informal Trustee, see the “Informal trusteeships” section of the Planning for Illness Information Page.

Things to consider when deciding whether to be an Informal Trustee

Being an Informal Trustee creates a formal relationship that comes with legal duties. Before deciding whether or not to be an Informal Trustee, you should consider if you can do the job.

For example:

  • Are you at least 18 years old and do you have capacity?
  • Do you have a trusting relationship with adult who needs the help?
  • Will you be available to do the job?
  • How well do you know the adult who needs the help, and are you familiar with his or her financial needs and preferences?
  • Can you handle money well?
  • Can you and the adult who needs the help communicate well?
  • Can you communicate well with others?
  • Will you be able to manage conflict with others who may not agree with the decisions being made?
  • Do you want to share the work with another Informal Trustee?

If you take the job, make sure you understand your duties

Sometimes, Informal Trustees misuse an Informal Trusteeship because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

Before you become an Informal Trustee, make sure you understand exactly what is expected of you.

More information

For more information about informal trusteeships, see the following resources.

Web Informal trusteeship | How it works
Government of Alberta
English

Web What is informal trusteeship?
Estate Law Canada
English
This is a private source. Learn more here.
Trusteeship

What it is

Trusteeship is a court-ordered legal relationship that allows a person to make financial decisions for another person.

When an adult has no capacity to make financial decisions, and has not prepared for that possibility by completing an Enduring Power of Attorney, someone will likely have to apply for Trusteeship. There is also the option in certain situations to apply for Temporary Trusteeship. For more information, see the “Temporary Trusteeship” section below.

An adult who is the subject of a Trusteeship Order is called a “Represented Adult.” The person authorized to make financial decisions for the Represented Adult is called the “Trustee.”

Be Aware

It is possible to apply for both Trusteeship and Guardianship at the same time. Also, the same person can be both Trustee and Guardian.

Who it is for

Adult Trusteeship is for any person over the age of 18 who has lost capacity. The Court may also make a Trusteeship Order for a person who is not yet 18 years old, but will be within 12 months.

Before applying for Trusteeship, you need to know whether the adult has an Enduring Power of Attorney and what it says. This is because a Trustee and an Attorney cannot share the responsibility for making the same decisions. For example, the adult may have an Enduring Power of Attorney that names an Attorney to make decisions about their bank accounts. However, no one was named to deal with their real property. In this case, a Trustee could be appointed to make decisions about the real property, but not about the adult’s bank accounts.

Usually a family member or loved one applies for Trusteeship. If there is no one willing, able, and suitable to act as the adult’s Trustee, the Public Trustee may be appointed. However, this is usually more difficult. The Public Trustee cannot simply be named in a Trusteeship application. There is a process that involves giving the Public Trustee both notice and an opportunity to make representations to the Court.

There can be more than one Trustee. If 2 or more people are applying to be Trustees together, they will need to decide how powers will be shared. For example:

  • Will one Trustee have authority over certain decisions, and the other Trustee have authority over other decisions?
  • Will both/all have to agree on every decision before it can be made?
  • Will they each be able to act separately on all kinds of financial decisions?

The issue of capacity

To get a Trusteeship Order, the adult must take part in a Capacity Assessment and be found to have lost capacity.

The Capacity Assessment:

  • focuses on the kinds of decisions that the adult needs to make; and
  • evaluates the level of assistance required.

The Capacity Assessment must be completed by a doctor, psychologist, or other health care professional specifically trained to be a Capacity Assessor.

For more information about getting a Capacity Assessment, see the “Formal Capacity Assessments under the Adult Guardianship and Trusteeship Act” section below.

How it is completed

Trusteeship is completed by getting a court order. However, this does not mean that a court appearance will always be required. Often, you can do it with a “desk application” instead. A desk application allows the parties to get a court order without having to appear in court.

If the case is straightforward with nothing to be argued, the application can be made by submitting the appropriate paperwork to a Review Officer at the Office of the Public Guardian and Trustee. The Review Officer then completes a separate report on the application and files the application with the Court of Queen’s Bench. If the Court is satisfied with the information, the Court can grant the Order. However, the Court or a concerned adult can still request a hearing to decide the matter.

For more information about applying for Trusteeship, see the Process tab of this Information Page.

How it works

Once the Trusteeship Order is in place, the Trustee can begin making decisions in the areas allowed by the Order. The terms of the Order will depend on the adult’s needs, and areas where his or her capacity is lacking.

Be Aware

A Trustee cannot make decisions in areas not permitted by the Trusteeship Order.

Trustees are expected to make decisions in the Represented Adult’s best interests and must never do anything to financially hurt the Represented Adult.

The Trustee must act “diligently and in good faith.” This means that you must put careful, honest, and sincere effort into doing the job. In addition, a Trustee must keep the Represented Adult informed of his or her decisions, and must keep a record of those decisions.

The decisions of the Trustee must be followed. If they are not followed, the Trustee can apply to the Court of Queen’s Bench for an Order to “give effect to a decision” of a Trustee. This means that the Court can authorize steps needed to carry out the decision of the Trustee. This can include police involvement, if required.

The risk of abuse

Although a Trusteeship Order is meant to be helpful, it can be used to abuse the Represented Adult. The Trustee has access to all financial information and will be making financial decisions.

He or she can use the position to control the Represented Adult, to treat him or her poorly, to steal from him or her, and to shut out other people that the Represented Adult might have wanted included. If abuse is suspected, it is often quite difficult to prove, as no one but the Trustee has access to the information and documents around the decisions being made.

For this reason, if your loved one needs a Trusteeship Order, you will want to think carefully about who would be the best person for the job.

You may also wish to ensure that the Order includes a review process on a regular basis. Under the Adult Guardianship and Trusteeship Act, there is no mandatory review period, but a review of a Trusteeship Order must be held if:

  • the Order itself states a review date;
  • there has been a significant change in the Represented Adult, which may require a change or termination of the Order to be in the best interests of the Represented Adult; or
  • something changes with the Trustee’s situation so that a review of the Order is needed. For example, if the Trustee becomes too ill to do the job.

If you think your loved one is being abused under their Trusteeship Order, trust your instincts and seek help. This will involve going back to court to have a judge look at the issue. An interested person may report abuse and apply for a review at any time. If the Represented Adult’s capacity is in question, the person applying must include a recent Capacity Assessment Report. Applications for reviews of Trusteeship Orders also go through the Review Officer.

Family Violence

For more information about abuse and what you can do about it, see the Elder Abuse Information Page. Although that Information Page is about elder abuse, much of the information also applies in situations where the victim is not an older person. You may also wish to see the What is Family Violence? Information Page.

Make sure the Trustee understands the job

Sometimes, Trustees misuse a Trusteeship Order because they do not understand it properly. They may not realize exactly:

  • what they are allowed to do,
  • what they are required to do, or
  • what they must not do.

For example: many people do not know that Trustees must keep track of the decisions they make.

For more detailed information on the role of the Trustee, see the following resources.

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 19-22.

Web Trusteeship
Centre for Public Legal Education Alberta
English

PDF Decision-making options brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

Web Trusteeship | How it works
Government of Alberta
English

PDF Tips for Newly Appointed Trustees
Government of Alberta
English


PDF Seniors and the Law: A Resource Guide
Alberta Civil Liberties Research Centre
English
Start on p. 59.

Family Violence

 

PDF Elder Abuse: If Plans Haven't Been Made
Centre for Public Legal Education Alberta
English

PDF L'abus fait aux aîné-e-s : Si aucune planification n'a été faite
Centre for Public Legal Education Alberta
French

 

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book The Adult Guardianship and Trusteeship Act: What Have We Learned? (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Temporary Trusteeship

Temporary Trusteeship is like Trusteeship, but you can get it faster and it only lasts for a short amount of time. It is intended for situations when the adult is in danger of serious financial harm.

In such cases, a concerned person can apply to the Court of Queen’s Bench for Temporary Trusteeship. The application process is quicker than the usual Trusteeship application, and some of the usual application requirements do not need to be met.

Tip

It is a good idea to check with the Office of the Public Guardian and Trustee before applying for Temporary Trusteeship. They will be able to tell you if another decision-making option might be better for your situation. See the following resource for contact information.


 

If it is granted, a Temporary Trusteeship Order lasts up to 90 days. However, it can be extended for up to 6 months. During this time, the applicant can then complete the usual Trusteeship application.

For more information about Temporary Trusteeship, see the following resource.

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 19.
Joint property

Sometimes, when people plan for illness, they use the legal tool of joint property. As a result, if you are helping a loved one with their affairs, you may:

  • be asked to become a joint tenant with that person; or
  • find out you have already been made a “joint tenant” with that person.

If so, it is important to understand this legal tool. For information about joint property and how it works, see the “Understanding joint ownership and debt” section of the Before Moving in Together: Legal Considerations Information Page.

Capacity Assessments under the Adult Guardianship and Trusteeship Act

What they are

In Alberta, the Adult Guardianship and Trusteeship Act (AGTA) provides a formal method of determining whether or not a person has lost capacity. It is called the “Capacity Assessment Process” (CAP). This process:

  • sets very specific and consistent testing standards;
  • focuses on the kinds of decisions that the adult needs to make; and
  • evaluates the level of assistance required.

Who they are for

This process must be used when applying for or reviewing any of the following:

  • Co-Decision-Making Orders;
  • Guardianship Orders; and
  • Trusteeship Orders.

The Capacity Assessment Process is not required for other decision-making options, but a person could choose to use it any time a decision about capacity is required.

How they are completed

The Capacity Assessment must be completed by a doctor, psychologist, or other health care professional specifically trained to be a “Capacity Assessor.” Capacity Assessors must meet professional standards, have specific training, and receive continuing education.

The Capacity Assessor will only look at the types of decisions where assessment is needed. For example, there may be no concerns about how the adult chooses his or her social activities, but there is concern about the adult’s ability to make health care decisions. In this situation, the Capacity Assessor would only assess the adult’s ability to make health care decisions.

Adults who are being assessed have the right to have:

  • a loved one there with them to help them feel comfortable;
  • an interpreter, if required;
  • any devices needed to help communicate (such as a hearing aid); and
  • the assessment take place at the time of day that best works for them.

For more information about the Capacity Assessment Process, see the following resources.

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 25-27.


Dealing with abuse in care facilities: The Protection for Persons in Care Act

If you have a loved one in a care facility, at some point you may find out that he or she has been treated poorly by his or her caregivers.

People who are receiving publicly funded services that support their physical or mental health are protected from abuse under Alberta’s Protection for Persons in Care Act (PPCA). People who are protected under the PPCA are often called people “in care” or “clients.”

Who are “service providers”?

According to this law, care providers (also called “service providers”) must take reasonable steps to protect clients from abuse. This law applies to:

  • hospitals;
  • seniors’ lodges;
  • nursing homes;
  • mental health facilities;
  • shelters;
  • group homes;
  • addictions treatment centres;
  • many settings funded by the Persons with Developmental Disabilities program; and
  • other supportive living settings.

What is abuse by service providers?

The PPCA has some specific definitions of abuse. In general, abuse under the PPCA includes any act or failure to act that:

  • causes serious physical harm;
  • causes serious emotional harm;
  • involves misuse of medications that then leads to serious bodily harm (this includes being given medications, being denied medications, or being given the wrong medications);
  • involves sexual abuse;
  • involves misuse or theft of a client’s money or valuable possessions; or
  • results in failing to provide adequate nutrition, adequate medical attention, or another necessity of life without the consent of the client, that leads to serious bodily harm.

Service providers and their employees are also responsible for keeping their clients safe from abuse.

For more information on the responsibilities of service providers and the definition of abuse, see the following resource.

PDF A Guide to Understanding the Protection for Persons in Care Act
Government of Alberta
English
See p. 3-6.

Who is required to report abuse of people in care?

Under the PCCA, anyone who believes that a client has been abused must report that abuse as soon as possible.

Be Aware

People in care who have experienced abuse are not required to report their own abuse. If an abused person decides to report the abuse, he or she must make that report no later than two years from the date the incident occurred.

More information

For more information about protecting persons in care from abuse, see the following resources.

Web Protection for Persons in Care
Government of Alberta
English




Web Protection for Persons in Care Act summary
Government of Alberta
English

Web Protection for Persons in Care Act
Alberta Health Services
English

For more information about how to report the abuse, see the Process tab of this Information Page.

Dealing with property in the digital age

If you are helping a loved one with decision-making, at some point you may have to deal with that person’s “digital assets.” When internet users lose capacity, they often have sensitive personal information online, or online accounts that family members and friends may want to access or close.

Digital assets are a person’s electronic possessions, including virtual property such as:

  • emails,
  • digital photos,
  • videos,
  • tweets,
  • texts,
  • music,
  • e-books, and
  • online account information for websites or programs such as Facebook, LinkedIn, Instagram, bank accounts, store accounts, PayPal, and any others.

Digital assets can have a financial value. For example, an online tool or website may make money or cost the owner something. Or, digital assets may only have sentimental value. For example, the photos of a family member.

In Canada today, there is very little law about maintaining digital assets if something happens to the owner or account holder. As a result, the rules that govern who can use or deal with another person’s digital assets are usually just those found in the “Service Agreements” that users must agree to when setting up those accounts. Many of those agreements do not state what happens if the account holder becomes incapacitated or dies. Also, most of them do not have an option of naming a personal representative for that asset. For those service agreements that do deal with it, the policies and procedures are different for every account.

This can make it difficult when trying to deal with another person’s digital assets. This is especially true given that section 342.1 of the Criminal Code of Canada makes it a crime to use a computer service when you know that you are not authorized to do so.

For more information about steps you can take to protect a loved one’s digital assets, see the Process tab of this Information Page.

Tip

Because there is very little law in this area, Agents and Attorneys may want to consider getting legal advice before attempting to access a person’s digital assets.

For more information about digital assets, see the following resources. Some of these resources talk about digital assets after death, but many of the same concepts apply for illness or incapacity.

Web How to plan your digital estate
TVA Publications
English
This resource is from a private source. Learn more here.
 
Presentation Understanding Digital Assets: Practical Approaches to Estate Planning and Administration
Alexander Holburn Beaudin + Lang LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Prudent Estate Planning in the Digital Age
Snedden Hall & Gallop Lawyers
English
This resource is from a private source outside Alberta. Learn more here.
 
Web Digital assets: disposal, rights and succession in Canada
Thomson Reuters Canada
English
This resource can be a challenge to read. Learn more here.
Transportation

If you are helping a loved one, at some point you may have to deal with changes in that person’s ability to drive.

Motor vehicle laws and safety

Driving a motor vehicle is a privilege, not a right. Alberta Transportation must balance individuals’ transportation needs and the public’s right to road safety. One of the ways that road safety is ensured is by monitoring drivers’ skills, safety records, and medical conditions.

As a person ages and/or becomes ill, he or she may no longer be able to drive, or be allowed to drive. Many people do not think of this possibility and are unprepared when it happens. If the person you are helping currently drives, you may wish consider what you will do to help them transition to a time when they can no longer drive.

A few things to keep in mind:

  • Under Alberta law, all drivers, regardless of age, are legally required to report any medical conditions that may affect their ability to drive safely.
  • For licence renewals (classes 5, 6, or 7), a medical report signed by the person’s doctor is required at: 75 years, 80 years, and every 2 years after 80 years.
  • Some medical conditions that may affect someone’s ability to drive include: vision changes, hearing loss, arthritis, diabetes, stroke, Parkinson’s disease, dementia, and Alzheimer’s disease.

For more information, see the following resources.

PDF Information for Mature Drivers
Government of Alberta
English

Web Driver Fitness and Monitoring
Government of Alberta
English

Other transportation options

If your loved one is too ill or too frail to drive, there may be other options available, depending on where he or she lives.

Most urban areas have public transit. In some areas, public transport for people with disabilities may be low cost or even free. For examples in Calgary and Edmonton, see the following resources.

Web Calgary Transit Access
City of Calgary
English

Web Disabled Adult Transit Service (DATS)
City of Edmonton
English

Web Resources Related to Transportation
Alberta Council on Aging
English

 

Some towns and cities have volunteer organizations that provide transportation. To ask about such services in your area, contact your local town council or seniors’ centre. Although not all people with serious illnesses are seniors, seniors’ organizations are usually well-informed about the services available in their area.

PDF Directory of Seniors' Centres in Alberta
Government of Alberta
English

There are also private companies, such as taxi companies, that provide transportation. To find them you can look in the Yellow Pages or ask for search help at your local library.

Housing options

If you are helping a loved one, at some point you may have to deal with changes in that person’s living arrangement. For example, he or she may need extra help to be able to stay at home longer, or he or she may need to move to a care facility.

In such cases, making the right decisions may partly depend on:

  • where your loved one currently lives;
  • what your loved one’s living arrangements may look like in the future; and
  • the kind of care your loved one will be able to receive in those housing options.

As a result, you may want to understand the housing options and the care and benefits that may be available. For a checklist of things to consider about housing, see the following resource.

PDF Let's Talk About Aging: Aging Well in Alberta
Government of Alberta
English
See p. 22.

 

In Alberta, public housing options (also called “continuing care options”) can be broadly grouped into 3 categories:

  1. home living (with help);
  2. supportive living; and
  3. facility living (or “long-term care”).

In each kind of housing, the Alberta government provides people with a broad range of accommodation and care. What you choose depends on what is right for your loved one.

Also, in all 3 settings, Alberta offers palliative care (also called “end of life care”). This is special medical care for adults or children diagnosed with a serious illness that will shorten their life. This type of care is not focused on treatment. Instead, it focuses on helping patients be comfortable, with the best quality of life possible for the time they have left.

For more information about publicly funded continuing care options, see the following resources.

Video Continuing Care
Alberta Health Services
English

Web What is Continuing Care?
Alberta Health Services
English

PDF Frequently Asked Questions: Continuing Care in Alberta
Alberta Health Services
English

Web Continuing Care Glossary
Alberta Health Services
English

Web Understanding Continuing Care
Alberta Health Services
English

PDF ASCHA’s Common Terminology Summary
Alberta Seniors Communities & Housing Association
English
 
 

In Alberta, it is also possible to have privately funded continuing care. This means that you would pay for everything, instead of being assisted by the Alberta Government. This Information Page deals only with publicly funded continuing care information.

Home living

The term “home living” describes people who need some kind of continuing care, but still live in their own house, apartment, condominium, or other independent living option.

While adults still live at home, they are responsible for setting up any support services that they may need. In other words, Alberta Health Services will not automatically do it for them. However, there are many government benefits available while a person continues to live at home. For example: Home Care, which provides in-home professional support services such as nursing and rehabilitation.

For information about the government services available for people who are trying to stay in their own home, see the “Government benefits & assistance” sections below.

There are also non-governmental organizations that can provide help. Some of these are non-profit organizations, some are for profit. One commonly used organization is Meals on Wheels, which provides low-cost cooked meals for people who cannot cook for themselves. Many communities in Alberta have a Meals on Wheels program.

To find out about the organizations and programs that can help your loved one stay in his or her home longer, there are several options:

  • Search on InformAlberta, which lists social service agencies across Alberta:
  • Contact your local seniors’ centre. Although not all people with serious illnesses are seniors, seniors’ organizations are usually well-informed about the services available in their area.
PDF Directory of Seniors' Centres in Alberta
Government of Alberta
English
  • If your loved one has a particular illness, contact the organizations that raise awareness about that illness, if there are any. These organizations may have more information about illness-specific services that are available.

For information on finding housing and downsizing, see the following resources.

Web Housing and rent assistance
Government of Alberta
English

Web Right-Sizing: A Quick Guide for Seniors
Caregiving Matters
English

If your loved one is also a senior, he or she may be able to get help from the Seniors Self-contained Housing Program. This program provides apartment-style accommodation to low- and moderate-income seniors who are functionally independent (with or without the assistance of community-based services). For more information, see the following resources.

Web Seniors' Self-contained Housing Program
Government of Alberta
English

Interactive Find Housing
Government of Alberta
English

Supportive living

“Supportive living” is accommodation in a home-like setting where people can remain as independent as possible. However, they also have access to services that meet their changing needs. Residents in supportive living can be any age, from seniors who require help due to age or illness to young adults with disabilities or illnesses.

Supportive living accommodations may be called different things and include many different kinds of facilities, including seniors’ lodges and group homes. Each setting is different and not all settings can meet the needs of every individual. For example: some may offer access to a kitchen, while some will not. Some will have few health care professionals on staff, while some will have many.

Accommodations with fewer supports are often called “seniors’ lodges.” Those with somewhat higher-level supports are called “Designated Supportive Living 3” facilities, or “DSL3s.” Those with the highest level of support are called Designated Supportive Living 4” facilities, or “DSL4s.”

In supportive living, residents are responsible for paying for their housing costs such as room, meals, housekeeping, and any optional services that may be offered (such as hairdressing and organized activities).

For more general information about supportive living, see the following resources.

Web Supportive living
Government of Alberta
English

PDF Supportive Living Guide
Government of Alberta
English

Web Supportive living
Government of Alberta
English

Web Seniors Lodge
Alberta Health Services
English

Web Designated Supportive Living
Alberta Health Services
English


For information about things to consider when choosing which facility your loved one needs, see the following resource.


 

To find supportive living facilities in your area, see the following resource.

Interactive Accommodation Search
Government of Alberta
English
If you use the “Advanced Search” option, you can choose the exact kind of supportive living facility you would like.

 

If your loved one is also a senior, you may be able to get help from the Seniors’ Lodge Program. This program provides affordable supportive living accommodations for low-income seniors. For more information, see the following resources.

Web Seniors' Lodge Program
Government of Alberta
English

Interactive Find Housing
Government of Alberta
English

When choosing a facility, you will also want to ensure that the home:

  1. is licensed; and
  2. has a good record.

Under Alberta’s Supportive Living Accommodation Licensing Act, a supportive living facility must be licensed if it provides:

  • permanent accommodation for 4 or more adults;
  • services related to the safety and security of the residents; and
  • at least one meal a day or housekeeping services.

The Alberta government also sets standards for all Alberta supportive living facilities and the care that is given in them. The government makes sure those standards are followed through annual inspections of the facilities, and makes their reports available to the public.

Under the Protection for Persons in Care Act, consolidated statistics on the reports of abuse are made available to the public. For more information, see the following resource.

Web PPC statistical reports
Government of Alberta
English

 

For more information about licensing and supportive living facilities standards, see the following resources.

Web Licensing of supportive living accommodations
Government of Alberta
English

Web Accommodation standards, forms and publications
Government of Alberta
English
See “Supportive living.”



 

For information about the government services available for people who are in supportive living facilities, see the “Government benefits & assistance” sections below.

Long-term care (“facility living” or “nursing homes”)

Long-term care settings are for people with complex, unpredictable medical needs, who require care 24 hours per day. There is a Registered Nurse on-site at all times, and regular doctor visits. Rooms in such facilities have a hospital bed, dresser, and closet. Residents can have a private room or share the room with another person. Your loved one can bring small, special items from home to make their space their own.

In long-term care, residents are responsible for paying for their housing costs such as room, meals, housekeeping, and any optional services that may be offered (such as hairdressing and organized activities).

For more information about long-term care, see the following resources.

Web Long Term Care
Alberta Health Services
English

Web Long term Care in Alberta
Care Planning Partners Inc.
English
This is a private source. Learn more here.

Web Legends, myths and nursing homes
Caregiving Matters
English

Web Long-term care
Alzheimer Society of Canada
English

Web Soins de longue durée
Alzheimer Society of Canada
French

 

To find long-term care facilities in your area, see the following resource.

Interactive Accommodation Search
Government of Alberta
English
If you use the “Advanced Search” option, you can search for only long-term care facilities.

 

When choosing a facility, you will also want to ensure that the nursing home:

  1. is licensed; and
  2. has a good record.

All facilities that provide residents with 24-hour nursing supervision and care must be licensed under Alberta’s Nursing Homes Act. The Alberta government also sets standards for all long-term care facilities in Alberta and the care that is given in them. The government makes sure those standards are followed through annual inspections of the facilities, and makes their reports available to the public.

Under the Protection for Persons in Care Act, consolidated statistics on the reports of abuse are made available to the public. For more information, see the following resource.

Web PPC statistical reports
Government of Alberta
English

 

For more information about licensing and long-term care facilities standards, see the following resources.

Web Licensing of supportive living accommodations
Government of Alberta
English

Web Accommodation standards, forms and publications
Government of Alberta
English
See “Long-term care.”



 

For information about the government services available for people who are in long-term care, see the “Government benefits & assistance” sections below.

Be Aware

When your loved one enters a long-term care facility, he or she may be asked to choose a funeral home. Although this can come as a shock, there are good reasons for it. Care homes are not hospitals. As a result, if a resident dies, the care home does not have the ability to keep the deceased on site. Instead, the care home staff may have to contact a funeral home to request that the deceased be transferred into their care. This process happens quite quickly. If the family and staff know who to call in advance, it is much easier on everyone.

Palliative or “end of life” care

Palliative or “end of life” care is special medical care for adults or children diagnosed with a serious illness that will shorten their life. This type of care is not focused on treatment. Instead, it is focused on helping patients be comfortable, with the best quality of life possible for the time they have left.

Palliative care can be offered anywhere: in continuing care centres, in hospitals, and even in your own home. There are also specialized “hospices” that only offer palliative care.

Palliative care is given by a team of people that works with the patient, the family and caregivers, and the family doctor. This team includes nurses, nurse practitioners, palliative care consultants, social workers, and Emergency Medical Services practitioners. You all work together to make health care decisions that are right for your loved one.

For more information about palliative care, see the following resources.

Web What is Palliative & End of Life Care?
Government of Alberta
English


Web Service Types - EMS for Patients & Families
Government of Alberta
English

Web What Is Palliative Care?
Canadian Virtual Hospice
English

Web Que sont les soins palliatifs?
Canadian Virtual Hospice
French

 
Web Edmonton Zone Palliative Care Program
Edmonton Zone Palliative Care Program
English
AP672, AHS Edmonton zone palliative care
Web Palliative Care - Service Locations
Alberta Health Services
English
 

For information about the government services available for people who are receiving palliative care, see the “Government benefits & assistance” sections below.

Employment-based benefits for your loved one

If you are helping a loved one with financial decision-making, at some point you may have to deal with changes in income. In such cases, even making choices about the decision-making options may partly depend on your loved one’s financial situation. For example: informal trusteeship may not even be an option with the kind income the person has. As a result, it is important to understand some common illness-related income options.

Canada Pension Plan Disability Benefit

The Canada Pension Plan (CPP) Disability Benefit is the largest long-term disability insurance program in Canada. CPP disability benefits provide monthly financial assistance to CPP contributors who are not able to work regularly because of a “severe” and “prolonged” disability.

  • Severe means that the person has a mental or physical disability that regularly stops him or her from doing any type of substantially paying work.
  • Prolonged means the disability is likely to be long-term, last indefinitely, or result in death.

If your loved one qualifies, his or her dependent children can also get benefits if those children are under 18 years old, or if they are full-time students and under 25 years old.

For more information about CPP disability benefits, see the following resources.

Web Canada Pension Plan disability benefits
Government of Canada
English

Web Canada Pension Plan Disability Benefit - Overview
Government of Canada
English

Web Disability benefits
Government of Canada
English



Web CPP-Disability Benefits
Durham Community Legal Clinic
English
This resource is from outside Alberta. Learn more here.



 

French resources



Web Prestations d'invalidité
Government of Canada
French

 
Be Aware

Choosing to apply for a CPP disability benefit instead of waiting until later to apply for the regular CPP benefit can have serious financial consequences. You may wish to consider getting legal advice. For more information, see the following resources.

Web CPP disability benefit versus early retirement pension
RetireHappy.ca
English
This is a private source. Learn more here.

PDF Pension Plan Issues with Progressive Disability
Parkinson Society British Columbia
English
This resource is from outside Alberta. Learn more here.

Employer disability insurance

If your loved one was employed at the time the illness began, and if he or she has disability insurance through the employer, he or she may qualify for benefits under that plan. Each plan is different and the exact benefits depend on the terms of the plan. To find out what benefits might be available, contact the employer.

Workers’ Compensation Board insurance

Sometimes, an illness or disability is the result of an accident that happened at work. In Alberta, there is insurance that can help with that, as many employers are covered by the Workers’ Compensation Board (WCB). Workers insured by the WCB are eligible to receive benefits for work-related injuries, no matter who caused the injury.

However, the employer may not have WCB insurance. It is not required for all employers, and will depend on the kind of job your loved one had.

For more information, contact the employer or the WCB, and see the following resources.

Web Did you know?
Workers' Compensation Board - Alberta
English

Web Workers' Compensation Board - Alberta
Workers' Compensation Board - Alberta
English

PDF WCB-Alberta Worker Handbook
Workers' Compensation Board - Alberta
English
Government benefits & assistance: An introduction

If you are helping a loved one with financial decision-making, at some point you may have to apply for financial assistance.

When your loved one becomes ill, he or she may qualify for various kinds of government benefits and assistance. The kinds of assistance available may depend on your loved one’s:

  • age;
  • living arrangements; and/or
  • income.

Some of the most common benefits are listed in the “Government benefits & assistance” sections below.

For detailed lists of public benefits and assistance in Alberta, see the following resources.

Web Health services in Alberta
Government of Alberta
English

Web Continuing Care
Government of Alberta
English

Web Pensions and retirement
Government of Alberta
English

Web Resources for caregivers
Canadian Hospice Palliative Care Association
English

Web Ressources pour les aidants
Canadian Hospice Palliative Care Association
French

PDF When I'm 64: Benefits for Seniors
People's Law School
English
This resource is from outside Alberta. Learn more here.

 

You can also contact Alberta Supports, which will give you information about programs offered by the government of Alberta.


 
Tip

If your loved one has Home Care, you can ask the case manager about benefits and programs that may be available. Programs change all the time: the case manager will have the most up-to-date information.

The federal government also has various kinds of benefits. See the following resource for a tool to find what benefits your loved one might be eligible for.

Interactive Benefits Finder
Government of Canada
English

 

There are also non-governmental organizations that can help. Some are for-profit, some are non-profit. To find out about these organizations and programs, you can:

  • Search on InformAlberta, which lists social service agencies across Alberta:
  • Contact your local seniors’ centre. Although not all people with serious illnesses are seniors, seniors’ organizations are usually well-informed about the services available in their area.
PDF Directory of Seniors' Centres in Alberta
Government of Alberta
English
  • If your loved one has a particular illness, contact the organizations that raise awareness about that illness, if there are any. These organizations may have more information about illness-specific services that are available.
Government benefits & assistance: During illness in general

Disability tax credits

Tax credits and deductions are available for people with disabilities, their supporting family members, and their caregivers. For more information, see the following resources.



Audio Disability Tax Credits (DTC)
Caregiving Matters
English

Assured Income for the Severely Handicapped (AISH)

The Assured Income for the Severely Handicapped (AISH) program provides financial and health-related assistance to eligible adults with a disability. The disability must be permanent and substantially limit the person’s ability to earn a living.

For more information about AISH, see the following resource.

Web Assured Income for the Severely Handicapped (AISH)
Government of Alberta
English

Alberta Aids to Daily Living (AADL)

Alberta Aids to Daily Living (AADL) helps people with a long-term disability, chronic illness, or terminal illness maintain independence in their community. AADL provides funding for basic medical equipment and supplies to meet various needs. A health care professional must first confirm that the equipment is required.

There are many different kinds of equipment and supplies that are available, including:

  • bathing aids,
  • specialty footwear,
  • hearing aids,
  • oxygen,
  • special beds,
  • wheelchairs,
  • transfer aids, and
  • seating supplies.

For a complete list, see the following resources.

Web Alberta Aids to Daily Living benefits
Government of Alberta
English

Web Program manual – Alberta Aids to Daily Living
Government of Alberta
English

Depending on your loved one’s income, the equipment may be free, or he or she may have to pay up to 25% of the cost. There is also a maximum amount that can be received per family each year. For more information, see the following resource.

Web Cost-share and cost-share exemption
Government of Alberta
English

For more information, talk to your loved one’s doctor or contact AADL.

Web Contact Alberta Aids to Daily Living
Government of Alberta
English

Web Apply for AADL benefits
Government of Alberta
English

Home Care

Home Care provides in-home professional support services, such as:

  • nursing,
  • rehabilitation,
  • homemaking,
  • bathing, and
  • grooming.

Providers make regular visits as required (sometimes several times a day).

Home Care services are publicly funded and provided through Alberta Health Services. Anyone living in Alberta with a valid health care card can receive Home Care services, as long as their needs can be met safely in the home where they live.

When you ask for Home Care for your loved one, he or she will be assigned a case manager. The case manager is a health professional who will:

  • assess the patient’s needs;
  • review service options with you and your loved one;
  • make service recommendations and referrals;
  • make sure your loved one is receiving quality service;
  • manage reassessment, waitlist, and discharge processes; and
  • coordinate any transitions between care facilities if your loved one changes facilities later on.

For more information about Home Care, see the following resources.

Web Home Care
Alberta Health Services
English

Web Home Care In My Zone
Alberta Health Services
Arabic, Chinese, English, French, German, Punjabi, Spanish, Vietnamese

Web Continuing Care: Getting a Case Manager
Alberta Health Services
English

Web Continuing Care: Public vs. Private Care
Alberta Health Services
English

 
Tip

Always ask the case manager about benefits and programs that may be available to your loved one. Programs change all the time: the case manager will have the most up-to-date information.

Drug coverage

The Alberta government provides additional health benefits for eligible Albertans. There are many different drug and supplementary health benefits programs offered by different government of Alberta ministries. For more information, see the following resource.

Web Drug coverage and supplementary health benefits
Government of Alberta
English

Diabetic supply coverage

If your loved one is using insulin to treat diabetes, he or she may be eligible for diabetic supply coverage. In addition, the Insulin Pump Therapy Program provides some funding for the cost of insulin pumps and pump supplies for eligible Alberta residents with Type 1 Diabetes. For more information, see the following resource.

Web Diabetic supply coverage
Government of Alberta
English

Palliative Coverage Program

Palliative coverage is a benefit offered to Albertans who have been diagnosed as needing palliative care. These patients are provided with health benefits that cover health-related services not covered by the Alberta Health Care Insurance Plan (AHCIP). This is intended to help cover the cost of care in the home. For more information, see the following resource.

Web Palliative Coverage Program
Government of Alberta
English
 

Alberta Health Advocates

Alberta’s health system is complex and people don’t always find or receive the care that they or their loved ones need. The Office of the Alberta Health Advocates is a place where Albertans can come for advice and help in dealing with health issues.

There are 3 Advocates:

  1. Health Advocate, who helps people navigate the general health system.
  2. Mental Health Patient Advocate, who can help people kept in hospitals under mental health certificates and people under community treatment orders to understand and exercise their rights and resolve concerns. The Advocate will also help people acting on behalf of such individuals.
  3. Seniors’ Advocate, who helps seniors, their families, and their caregivers navigate the health care system and continuing care system. The Office provides information on support programs and services for seniors.

You do not have to know which Advocate you need before calling or writing. The Office will help you figure that out as well.

For more information, see the following resources.

Web Health Advocate
Office of the Alberta Health Advocates
English

Web Mental Health Patient Advocate
Office of the Alberta Health Advocates
English

Web Office of the Seniors Advocate
Government of Alberta
English

More information

The benefits listed in this section are only some of the most common benefits available. To learn how to find more benefits, see the “Government benefits & assistance: An introduction” section above.

Government benefits & assistance: If your loved one is also a senior

Alberta Blue Cross Coverage for Seniors

For health-related services not covered by the Alberta Health Care Insurance Plan, the Alberta Government provides premium-free Alberta Blue Cross coverage for seniors. This coverage is available to all Albertans 65 years or older, and all recipients of the Alberta Widows’ Pension and their dependants. For more information, see the following resource.

Web Coverage for Seniors benefit
Government of Alberta
English

Dental and optical assistance for seniors

The Dental and Optical Assistance for Seniors programs are based on income. They provide low- to moderate-income seniors with financial assistance for basic dental and optical services that help maintain a reasonable level of health. For more information, see the following resources.

Web Dental and optical assistance for seniors
Government of Alberta
English

PDF Seniors Financial Assistance Programs: Information Booklet
Government of Alberta
English
See p. 6-7.

The Special Needs Assistance for Seniors program

This program is available to help seniors with the cost of home appliances, minor home repairs, and some health and personal supports. The program provides a lump-sum payment to eligible low-income seniors. For more information, see the following resources.


PDF Seniors Financial Assistance Programs: Information Booklet
Government of Alberta
English
See p. 8.

Web Special Needs Assistance for Seniors program
Government of Alberta
English

Low-income housing

There are 2 programs that help low-income and moderate-income seniors find affordable housing.

The first is the Seniors Self-Contained Housing Program. This program provides apartment-style accommodation to low-income and moderate-income seniors who are functionally independent (with or without the assistance of community-based services). For more information, see the following resource.

Web Seniors' Self-contained Housing Program
Government of Alberta
English

The second is the Seniors’ Lodge Program. This program provides affordable supportive living accommodations for low-income seniors. For more information, see the following resource.

Web Seniors' Lodge Program
Government of Alberta
English

To find housing options under these programs, see the following resource.

Interactive Find Housing
Government of Alberta
English

Seniors’ Advocate

The Seniors’ Advocate helps seniors, their families, and their caregivers navigate the health care system and continuing care system. The Office provides information on support programs and services for seniors. For more information, see the following resource.

Web Office of the Seniors Advocate
Government of Alberta
English

More information

The benefits listed above are only some of the most common benefits available to seniors. There are more, and some are available whether or not your loved one is ill: for example, the Senior’s Property Tax Deferral Program. To learn how to find more benefits, see the “Government benefits & assistance: An introduction” section above, and the following resources.


PDF Seniors programs and services: Information guide
Government of Alberta
English

PDF Programs and Services for Seniors: Quick Facts
Government of Alberta
English

PDF Programs and Services for Seniors: Quick Facts (multiple languages)
Government of Alberta
Blackfoot, Chinese, French, Italian, Plains Cree, Punjabi, Spanish, Tagalog, Vietnamese
See the “Publications” section, then choose “Programs and Services Quick Facts” in your language.

Web Seniors financial assistance and benefits
Government of Alberta
English
Government benefits & assistance: If your loved one still lives at home

Residential Access Modification Program (RAMP)

The Residential Access Modification Program (RAMP) provides grants to help lower-income Albertans with mobility challenges modify their homes so they can enter and move around more easily. For more information, see the following resource.

Web Residential Access Modification Program (RAMP)
Government of Alberta
English

Alberta Seniors Home Adaptation and Repair Program (SHARP)

The Seniors Home Adaptation and Repair Program provides low-interest home equity loans to help seniors get money to make necessary repairs, adaptations, and renovations to their homes. For more information, see the following resource.

Web Seniors Home Adaptation and Repair Program (SHARP)
Government of Alberta
English

Respite Care

This program through Alberta Health Services gives caregivers a short period of rest and relief from their responsibilities. Your loved one may remain in their own home or may be temporarily given a respite bed in a continuing care facility. For more information about respite care, see the following resource.

Web Respite Care
Alberta Health Services
English

Canada Mortgage and Housing Corporation (on-reserve)

The Canadian Mortgage and Housing Corporation (CMHC) can help caregivers pay for on-reserve home modifications. For more information, see the following resource.

Web Housing Programs and Financial Assistance
Government of Canada
English
See “Renovation and Rehabilitation Programs.”

Web Programmes de logement et aide financière
Government of Canada
French
Voir : “Programmes d’aide à la rénovation et à la remise en état.”

More information

The benefits listed in this section are only some of the most common benefits available. To learn how to find more benefits, see the “Government benefits & assistance: An introduction” section above.

For more general information about aging in the home, see the following resources.

PDF Adaptable Housing
Government of Canada
English

PDF Logements adaptables
Government of Canada
French

Web Aging in Place
Government of Canada
English

Web Vieillir chez soi
Government of Canada
French
Government financial assistance for caregivers

As a caregiver, you may be eligible for various forms of assistance from the Government of Canada. For example: Employment Insurance (EI) provides “compassionate care” benefits to people who have to be away from work temporarily to provide care or support to a family member who is gravely ill with a significant risk of death. Also, you can claim a “family caregiver amount” on your tax return.

For more information about government financial help for caregivers, see the following resources.

Web Employment Insurance Compassionate Care Benefits
Government of Canada
English

Web In difficult times: Compassionate care benefits
Government of Canada
English

Web Family caregiver amount (FCA)
Government of Canada
English

French resources:

Web Assurance-emploi et prestations de compassion
Government of Canada
French


Web Montant pour aidants familiaux (MAF)
Government of Canada
French
Aboriginal matters and on-reserve considerations

For Aboriginal families living off-reserve, and whose property is all off-reserve, all of the laws described above apply.

For Aboriginal families who live on-reserve and/or have property on-reserve, most of the laws described above apply. However, the federal Indian Act will also apply, and the Indian Act rules and requirements might even trump the provincial rules.

Some of these situations are described below.

Incapacity & Powers of Attorney

When dealing with property during incapacity, the Indian Act has rules that are different from Alberta’s general provincial law.

Specifically, section 51 of the Indian Act gives Indigenous and Northern Affairs Canada (INAC) the authority to step in to deal with property issues if the Aboriginal person:

  • is a registered Indian or entitled to be registered;
  • is “ordinarily resident” on-reserve; and
  • has been declared mentally incompetent according to provincial law.

This authority overrides a Power of Attorney. INAC may use a Power of Attorney as evidence of a Donor’s wishes, but it will not determine who will be appointed as administrator of your loved one’s property.

Instead, INAC will offer the job of administrator of the property to family members. To be considered for this role, a family member must apply to be appointed by INAC. As a result, if your loved one lives on-reserve, you may wish to contact INAC to determine the process to have someone appointed as administrator of his or her property in case he or she loses capacity. Until a person has been appointed, INAC has the same powers and responsibilities as an Attorney named in a Power of Attorney. If no family members are willing to take on the job, INAC will contact Alberta’s Office of the Public Trustee to take on the job.

Aboriginal families on-reserve must also consider any band laws or requirements. For more information about specific bands, see the following resource.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French

Personal Directives and other help with personal decisions

The Indian Act does not address Personal Directives and other kinds of help with personal decision-making. Indigenous and Northern Affairs Canada will not step in to deal with your loved one’s health matters.

Advance Care Planning

Many Aboriginal cultures view dying and death as a natural part of our life cycle with ceremonies and rites marking them. As a result, Aboriginal people may want to use traditional medicines, Elders, and healers for end-of-life ceremonies.

If your loved one has specific cultural health care choices, he or she can write them down. He or she should share these plans with you and any other people being asked to make health care decisions and carry out ceremonial wishes.

However, sometimes cultural needs can conflict with rules and policies at a care facility. For example, a nursing home may have rules against smoking in the building. This rule may mean it will be difficult to have a smudging ceremony if your loved one lives there.

Before choosing a care facility, you may wish to ask if staff have worked with Aboriginal people before or if they have training in cultural sensitivity. You may also wish to ask about any policies they have about the spiritual and cultural needs of the residents.

For more information, see the following resources.

Web First Nations Resources
Canadian Hospice Palliative Care Association
English

Web Advance Care Planning
Government of British Columbia
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more hereSee the “Brochures” section and choose “Aboriginal Health Advance Care Planning.” The link will automatically download onto your computer.

PDF Planning Ahead, Staying Safe: A Guide for Aboriginal Seniors on PEI
Community Legal Information Association of Prince Edward Island
English
This resource is from outside Alberta. Learn more hereSee p. 20-21.
Blended family considerations

In Alberta, the law around caring for and substitute decision-making for a loved one is no different for blended families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, although the law is the same, the family issues may be much more complicated. For example: if your loved one is remarried, he or she may wish for the new spouse to have decision-making ability. The children from your loved one’s first marriage may not be happy with this. Resolving this type of family conflict can be challenging. You may want to consider finding a counselor, mediator, or lawyer to help with these discussions. For more information about these options, see the following Information Pages.

For more information on substitute decision-making in blended families, see the following resources.

Web When Chronic Illness Strikes the Blended Family
Burzynski Elder Law
English
This resource is from outside Alberta. Learn more here.

The following resources are not available online. The links below will give you a preview of the articles, and you can find the full articles at libraries across Alberta. Please note that these articles are sections within books. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Blended Family Dynamics: Effectively Handling the Cocktail (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

LGBTQ considerations

In Alberta, the law around caring for and substitute decision-making for a loved one is no different for LGBTQ families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

Unfortunately, LGBTQ families sometimes still face social stigmas, homophobia, transphobia, discrimination, and misunderstanding. If the individual or couple is not “out” to extended family members, there can be additional misunderstanding and conflict about who should have the right to make decisions.

As a result, it is especially important to have legal documents that identify the nature of the relationship and that these documents be clear and specific. If your loved one did not make a Personal Directive or Power of Attorney while he or she had capacity, you may find that you have to deal with family conflict while applying for Guardianship and/or Trusteeship.

You may want to consider having a counselor, mediator, or lawyer help with these discussions. For more information about these options, see the following Information Pages.

Also, if an LGBTQ person is looking into options for care facilities, it is important that you learn about the facility’s attitudes and understanding of LGBTQ issues.

Polyamorous relationships

In Alberta, much of the law around caring for and substitute decision-making for a loved one is no different for polyamorous families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, polyamorous families sometimes still face social stigmas and difficulties that other families may not. Extended family members may not know about or understand the polyamorous relationships. This can lead to conflict about who should have the right to make decisions.

As a result, it is especially important to have legal documents that identify the nature of the relationships and that these documents be clear and specific. If your loved one did not make a Personal Directive or Power of Attorney while he or she had capacity, you may find that you have to deal with family conflict while applying for Guardianship and/or Trusteeship.

You may want to consider having a counselor, mediator, or lawyer help with these discussions. For more information about these options, see the following Information Pages.

Concerns for immigrants and other non-citizens

Regardless of your immigration status in Canada, the law around caring for and decision-making for a family member is the same. Your issues and options will be guided by the same laws and approaches described above.

However, if the proposed decision-maker or any property is outside of Canada, there may be additional challenges. For more information, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

If one of the parties is involved in criminal proceedings

In Alberta, the law around caring for and substitute decision-making for a loved one is no different for families where one of the parties is involved in criminal proceedings than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, your loved one may not wish to appoint someone who is in prison as his or her personal decision-maker, as it would be difficult for someone in prison to do that job. Also, someone having trouble with the law might not be able to access your loved one’s property to make financial decisions.

Process

Learn more about being the caregiver or decision-maker for a loved one, including:

  • Getting a Capacity Assessment for your loved one
  • Being a Supporter, Co-Decision-Maker, Specific Decision-Maker, Informal Trustee, Agent, Attorney, Guardian, and/or Trustee for a loved one
  • Going to court about any issues related to decision-making for a loved one
  • Reporting abuse in a care facility
  • Helping your loved one ask for medical assistance in dying
  • Dealing with housing and transportation for your loved one

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: July 2016
Who is this Information Page for?

This Information Page contains information about legal issues to consider when:

  • caring for an adult family member or other loved one; and/or
  • making decisions for an adult family member or other loved one.
Be Aware

This Information Page deals only with caring for adults, and making decisions for adults. For information about making decisions for a person under the age of 18, see the Children’s Rights Information Page.

In general, the law and process on this Information Page is for people who live in Alberta. This is because for Alberta law to apply, the adults who need help should live in Alberta. If a court in any other province, territory, or country has already made an order in your case, or if a move has occurred or is planned, please see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

You are currently on the Process tab of this Information Page, which has information about the processes you need to follow to help the adult in need. For information on what the law says about caring and making decisions for others, click on the Law tab above. There is also important information in the Common Questions and Myths tabs above.

Finding a lawyer or other legal help

For information about how to find and work with a lawyer, see the Working with a Lawyer Information Page.

For other legal resources in your community that may be able to help, see the Community Legal Resources & Legal Aid Information Page.

In addition, the following organizations may be able to help with making substitute decision-making arrangements.

Web Civil Law
Legal Aid Alberta
English

PDF Seniors and the Law: A Resource Guide
Alberta Civil Liberties Research Centre
English
Start on p. 121.

Web Application help
Government of Alberta
English

Web Personal Decision Making Assistance
Kerby Centre
English

Web Guardianship Services
Seniors Association of Greater Edmonton
English
Getting capacity assessed: Is it required?

If the adult who needs help appears to still have capacity

If the adult who needs help still has capacity, the law might not require that capacity be assessed before the person can sign a legal planning document.

The legal decision-making tools that require the formal Capacity Assessment Process (CAP) are:

  • Co-decision-making;
  • Guardianship; and
  • Trusteeship.

On the other hand,  the CAP is not required to complete:

  • Supported Decision-Making Authorizations;
  • Personal Directives;
  • Advance Care Planning;
  • Goals of Care Directives;
  • Powers of Attorney;
  • informal trusteeships; or
  • transfers into joint property.

In other words, for adults who need help but have not lost all capacity, the only legal tool that requires the formal CAP is co-decision-making. For informal trusteeships, a document indicating loss of capacity may have to be signed, but there is no need for the formal CAP.

However, you can use the CAP with other legal tools, if you want to. Sometimes people choose to use the CAP, even if they do not have to, as it provides a thorough medical assessment of a person’s decision-making abilities. This can be especially helpful if there is any dispute between loved ones about whether the adult in question has capacity.

Be Aware

Sometimes a lawyer can help with a kind of legal capacity assessment for certain legal documents. For more information, see the “Getting capacity assessed” section on the Process tab of the Planning for Illness Information Page.

If the adult who needs help appears to have lost capacity

If the adult who needs help has lost capacity, all of the available legal tools require some kind of capacity assessment.

Specifically:

  • If the adult has pre-planned and made a Personal Directive and/or Enduring Power of Attorney, you will need to get formal confirmation that capacity has been lost before either of those documents can come into effect. For information about how to do that, see the “Personal Directives” and “Powers of Attorney” sections below.
  • If the adult has not pre-planned, and you therefore need to arrange for Guardianship or Trusteeship, you will need to have the adult go through the formal Capacity Assessment Process. For more information, see the “Formal Capacity Assessments under the Adult Guardianship and Trusteeship Act” section below.
Remember

For specific decision-making, the adult will not have to undergo a complete CAP. Instead, medical staff will complete a brief capacity assessment right at that time. Similarly, for Temporary Guardianship and Temporary Trusteeship, a full capacity assessment may not be required.

Formal Capacity Assessments under the Adult Guardianship and Trusteeship Act

In Alberta, the Adult Guardianship and Trusteeship Act (AGTA) provides a formal method of determining whether or not a person has lost capacity. It is called the “Capacity Assessment Process” (CAP). This process:

  • sets very specific and consistent testing standards;
  • focuses on the kinds of decisions that the adult needs to make; and
  • evaluates the level of assistance required.

The Capacity Assessment must be completed by a doctor, psychologist, or other health care professional specifically trained to be a “Capacity Assessor.” Capacity Assessors must meet professional standards, have specific training, and receive continuing education.

The Capacity Assessor will only look at the types of decisions where assessment is needed. For example, there may be no concerns about how the adult chooses his or her social activities, but there is concern about the adult’s ability to make health care decisions. In this situation, the Capacity Assessor would only assess the adult’s ability to make health care decisions.

The legal decision-making tools that require the CAP are:

  • co-decision-making;
  • Guardianship; and
  • Trusteeship.

For the above 3 legal tools, a CAP will be required:

  • when first applying; and
  • when any of these arrangements are reviewed by the Court.

On the other hand, for specific decision-making the adult will not have to undergo a complete CAP. Instead, medical staff will complete a brief capacity assessment right at that time. Similarly, for Temporary Guardianship and Temporary Trusteeship, a full capacity assessment may not be required.

However, a person could use the CAP any time a decision about capacity is required.

For more information about the CAP, see the following resources.


PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English


 

A list of Capacity Assessors and the forms you will need are in the following resources.

Web Find a capacity assessor | How it works
Government of Alberta
English

Web List of capacity assessors
Government of Alberta
English

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
Supported decision-making

Completing a Supported Decision-Making Authorization

The “Supported Decision-Making Authorization” form is in the following resource.

Web Supported Decision-Making Authorization (Form 1)
Government of Alberta
English
The form linked on this web page only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.

The parties do not need to complete any kind of capacity assessment, and they do not apply to a court.

Tip

The Supported Adult may also want to consider completing a Personal Directive and a Power of Attorney, if he or she has not yet done so. At the moment, he or she still has capacity and can still complete these documents. Once capacity is lost, he or she will no longer be able to make a Personal Directive and a Power of Attorney and a loved one will likely have to apply in court for Guardianship and Trusteeship.

Ending a Supported Decision-Making Authorization

The parties to a Supported Decision-Making Authorization can end the Authorization at any time. For more information and the form you will need to do this, see the following resource.

Web Supported Decision-Making Authorization (Form 1)
Government of Alberta
English
The form linked on this web page only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.
Co-decision-making

Getting a Co-Decision-Making Order

Co-decision-making is completed by getting a court order. However, this does not mean that a court appearance will always be required. Often, you can do it with a “desk application” instead. A desk application allows the parties to get a court order without having to appear in court.

For co-decision-making, if the case is straightforward with nothing to be argued, the application can be made by submitting the appropriate paperwork to a Review Officer at the Office of the Public Guardian and Trustee. The Review Officer then completes a separate report on the application and files the application with the Court of Queen’s Bench. If the Court is satisfied with the information, the Court can grant the Order. However, the Court or a concerned adult can still request a hearing to decide the matter.

The application forms require a great deal of information and detail, and may take weeks to process. Also, the person needing the help must have his or her capacity assessed through the Capacity Assessment Process (CAP) required by the Adult Guardianship and Trusteeship Act (AGTA). For information about this process, see the “Getting capacity assessed” section above.

For more information about the process of applying for co-decision-making, see the following resources.

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English

PDF Co-decision-making brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian
See p. 5-7.
 

The application package for co-decision-making is available below. The forms required for the capacity assessment are included in the application package.

Web Become a co-decision-maker
Government of Alberta
English
See “Step 3.”

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Co-decision-making.”

 
Tip

The Assisted Adult may also want to consider completing a Personal Directive and a Power of Attorney, if he or she has not yet done so. At the moment, he or she still has capacity and can still complete these documents. Once capacity is lost, he or she will no longer be able to make a Personal Directive and a Power of Attorney and a loved one will likely have to apply in court for Guardianship and Trusteeship.

Getting help applying for Co-Decision-Making

If you need help applying for co-decision-making, there are places that can help for free. See the following resources for contact information in your area.

Web Application help
Government of Alberta
English

Web Personal Decision Making Assistance
Kerby Centre
English

Web Guardianship Services
Seniors Association of Greater Edmonton
English

Reviewing a Co-Decision-Making Order

For information about the process of reviewing a Co-Decision-Making Order, see the following resources.

Web Co-decision-making review
Government of Alberta
English

Web Apply for co-decision-making review
Government of Alberta
English

Making a complaint about, or asking to remove, a Co-Decision-Maker

It is possible to lodge a complaint with the Court about a Co-Decision-Maker, or to ask the Court to remove a Co-Decision-Maker. The forms you will need are in the following resource.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Co-decision-making.”

Ending a Co-Decision-Making Order

As long as the Assisted Adult still has capacity, he or she can apply to end the Co-Decision-Making Order at any time. So can the Co-Decision-Maker. This is done by applying to the Court of Queen’s Bench. The forms you will need are in the following resource.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Co-decision-making.”
Specific decision-making

For the forms required to arrange for specific decision-making, see the following resource.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Specific decision-making.”
Agents: Working with a Personal Directive and understanding your role

The information in this section is for situations when a Personal Directive has already been completed. If you are helping a person who still has capacity, and that person wants to make a Personal Directive, the information he or she needs is in the “Personal Directives” section of the Planning for Illness Information Page.

Bringing a Personal Directive into effect

To bring a Personal Directive into effect, the Maker must be declared to have lost capacity.

In general, the Maker will have said in the Personal Directive who will make that decision.

For example:

  • The Maker may have stated that his or her family doctor should decide.
  • Or, the Maker may have stated that 2 separate doctors must both agree that capacity has been lost.
  • Or, the Maker may have stated that his or her spouse (or another loved one) can decide. The Maker can do this even if that loved one is not a physician or a psychologist. However, in such a case, the loved one would have to consult with a physician or a psychologist before declaring the Maker has lost capacity.

If the Personal Directive does not say who will determine whether capacity has been lost, the law says that the decision will be made by 2 “service providers.” At least one of these service providers must be a physician or a psychologist.

To declare incapacity, the person (or people) making the decision must complete a special form that is required by the Alberta Personal Directives Act. The exact form needed depends on who is determining that capacity has been lost.

  • A physician or psychologist must use the following form: 

  • Any other person named in a Personal Directive as the person who will make the decision must use the following form after consulting with a physician or psychologist

Being an Agent

Being an Agent is not an easy job. It also comes with legal responsibilities. It is critical that you understand what the job entails. You could end up in legal trouble if you do not.

For more detailed information on the role of an Agent, see the following resources.

PDF Being an Agent in Alberta
Centre for Public Legal Education Alberta
English

PDF Understanding Personal Directives booklet
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Ukrainian
Choose your language, then start on p. 10.

PDF Making a Personal Directive in Alberta
Centre for Public Legal Education Alberta
English
Start on p. 10.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Duties of Attorneys and Agents (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Bringing a Personal Directive out of effect

Sometimes a person who lost capacity later regains capacity. If this occurs, the Agent or medical staff can take the Personal Directive out of effect. The exact forms that are required depend on the circumstances. For information about which forms you will need, see the following resource.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Personal Directive.”
Agents: Asking the Court for “advice and direction”

If an Agent is ever unsure about what to do, he or she can ask the Court of Queen’s Bench for ”advice and direction.” This can be especially helpful in situations that are sensitive or “contentious” (that is, involving strong disagreements or arguments).

Hiring a lawyer or representing yourself?

If you go to court, you can choose to either be represented by a lawyer, or to represent yourself.

If you hire a lawyer, your lawyer will explain to you what is happening with your case. A lawyer can help you reach an out-of-court agreement, or represent you in court. For more information about your options for legal representation and assistance, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

If you represent yourself, the Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
 

Also, the Court of Queen’s Bench has created a Court Procedure Booklet that has helpful information.

Before you go to court: Get to know the court system

The court process is not simple, and there are many rules. If you represent yourself, you will need to follow the required processes and the rules.

Chambers

If you are asking the Court for advice and direction, your matter will be heard in “chambers.” These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people.

  • In larger cities, there is “Dependent Adult Chambers.” Your matter may go here.
  • In other areas, there may not be this special kind of chambers. Instead, your matter may go to “Civil Chambers.”

In addition, there are 2 kinds of chambers:

  • regular chambers (sometimes called “morning chambers”); and
  • special chambers (sometimes called “afternoon chambers”).

Regular chambers is for simpler matters that can be heard in 20 minutes or less. Special chambers is for more complex matters that need more time.

Queen’s Bench “Practice Notes”

“Practice Notes” are additional rules issued by the Court, often about court procedures. These rules apply only in the Court of Queen’s Bench (not in Provincial Court). These rules are not just for lawyers—you must follow them even if you are representing yourself. For a list of the Practice Notes, see the following resource.

Web Court of Queen's Bench: Practice Notes
Government of Alberta
English
 

The parties involved

Asking the Court for advice and direction will involve more than just you and the judge. Specifically, you will have to inform the following people that are you are going to court.

  • The Maker
  • Any other legal representatives that the Maker may have (such as other Agents, Guardians, Attorneys, or Trustees)

The rest of this section explains how you must keep the other parties involved in the process.

Scheduling hearings and giving notice to the others

The sections below will explain all of the paperwork that needs to be completed for chambers hearings. You will learn that there are rules about:

  • how to schedule hearing dates; and
  • when you have to let the other party know about the application. This is called “giving notice.”

The court has these rules to make sure that everyone has enough time to prepare for court and no one is taken by surprise. This leads to fairer results.

Because of this, courts are quite strict about the rules. However, sometimes there are good reasons to not follow the rules. In such cases, you may want to ask for an “exception” to the rules. This means you are asking for permission to not follow the rules.

For example, it may be possible to:

  • get time limits shortened for giving notice to the other party (this is also called “abridging” the time); and
  • get court dates moved up to an earlier date.
Be Aware

These changes in the rules are for special situations. There must be a very good reason to request an exception. Also, if you ask for an exception, there are very specific steps that you must follow.

For information about whether you can ask for any of these exceptions, contact the Court of Queen’s Bench in your judicial centre, or ask at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Before you go to court: Is this the right court to file in?

On this topic, there are 2 questions to ask:

  1. Is Alberta the right province in which to go to court? Should you be making your application in a different province or a different country? If both you and the Maker live in Alberta, Alberta will be the correct province. If the Maker now lives in another province, Alberta may not be the correct province. For more information about Personal Directives and out-of-province issues, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.
  2. Is this the correct judicial centre? Alberta is divided into several areas called “judicial centres” (previously called “judicial districts”). As a general rule, applicants file their documents in the courthouse in the judicial centre where they live. The matter can then be heard in that judicial centre as well.

If at any point you want to change the judicial centre, you will have to make a separate application for that. See the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents, especially if the violence provides the reason for any of your requests.

First-time applications for advice and direction

The first time you ask the Court for advice and direction, you will need to file 2 documents:

  1. An “Originating Application.” This is the form in which you explain what you are asking for.

  2. An “Affidavit.” This is the form in which you provide the information and evidence that the Court will need to be able to give you advice and direction.

These links only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.


Additional Applications for advice and direction

If you ask for advice and direction again, you will not need to file an “Originating Application” again. This is because the Court still has your Originating Application on file from the first time you applied.

Instead, you need to file 2 documents:

  1. An “Application.” This is the form in which you explain what you are asking for.
  2. An “Affidavit.” This is the form in which you provide the information and evidence that the Court will need to be able to give you advice and direction.

These links only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.


Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). This can be completed with a Commissioner for Oaths or a Notary Public. You can find Commissioners for Oaths and Notaries Public in the yellow pages of the telephone book or online at YellowPages.ca.

“Filing” the paperwork and choosing a court date

To file the paperwork, you must hand in the originals and multiple copies of everything—one copy of each document for you and one for each party that you must serve—at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
 

At the courthouse, and with the help of a court clerk, you will be able to pick a court date.

Depending on your location and the amount of time your matter is expected to take, you may have to appear in court in regular chambers (also called “morning chambers”) or in special chambers (also called “afternoon chambers”). The court clerk will help you figure out what time you are to appear. Regular chambers is for matters that can be heard in 20 minutes or less. Special chambers is for more complex matters that need more time.

When choosing a date, you will need to make sure you have enough time to “serve” the other parties (see the next step). You also need to give the other parties enough time to respond to your application.

After you have been given a court date, write it down on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is filed, you will need to “serve” it on the other parties. “Service” is the legal term for delivering certain kinds of documents. This is to notify them that a hearing is taking place. This means you have to make sure that they get the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

You will have to serve the Maker of the Personal Directive, as well any other legal representatives that the Maker may have (such as other Agents, Guardians, Attorneys, or Trustees).

“Proving” that the paperwork was served

It is not enough for you to just serve the other parties: you must also prove that you served the other parties. To do so, the person who served the paperwork must swear an Affidavit of Personal Service.

Dealing with responses

The other parties may respond to your application. If this occurs, your matter may get much more complicated and you may wish to consult a lawyer. For more information about your options, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page. You may also be able to find some help at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Plan to go to the chambers hearing

The Application tells you when and where court will be held. It is your responsibility to make sure that you are in the correct courtroom. When you enter the courthouse, you can ask a staff member for directions.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Preparing for chambers

You will be appearing in “chambers” in the Court of Queen’s Bench. Chambers is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people. Yours is one case on the list.

For most people, going to court will be a brand new experience. It may also come as a bit of surprise. Being in court is not really as it appears on most television shows, and you will likely not be familiar with the rules of court (yes, there are rules!). Also, most people find that dealing with family issues in court is stressful.

For these reasons, it is a good idea to prepare for the court experience. The following resources provide some very useful information on preparing for court.


For more information, see the Representing Yourself in Court Information Page.

Asking for an adjournment

Sometimes, due to circumstances beyond their control, one or both of the parties will not be able to attend court, or will not be prepared for court. It is possible to ask for a court hearing date to be moved. This is called an “adjournment.”

If all of the parties agree, you can arrange for an adjournment well in advance of the court hearing date. To find out how to do that, call your Court of Queen's Bench Chambers Clerk.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
 

You can also ask for an adjournment on the date of the court hearing. If all parties agree, you can ask for an adjournment before the chambers list begins. The judge will ask if there are any preliminary matters—this is the time to make the request. Judges often grant such adjournments, but not always (for example, if they are concerned that one of the parties will be harmed by the adjournment, or if they feel that the adjournment option has been abused). If any party does not agree, you must wait for your turn on the list and request an adjournment when your turn comes. The judge may or may not grant the adjournment.

You must have a good reason to ask for an adjournment. The Court is not pleased if adjournments are just asked for as a delay tactic. The Court keeps track of all adjournment requests. If there are too many requests for adjournments, the Court may deny the request or even impose penalties.

After the chambers hearing is over

When your court hearing is over, the judge will give you an Order providing direction. In most cases, the Order granted by the judge will be typed up by the court clerk. It may be ready shortly after the hearing. If it is not, it will be mailed to you. It will also be mailed to any other parties. If one of the parties is represented by a lawyer, the judge may ask that lawyer to type it up.

Once you have the Order, you may need to serve it on the other parties—check with the court clerks. Remember, if you do have to serve the other party, you will also need to complete and file an Affidavit of Service.

Agents: If you no longer want the job

It is possible for an Agent to resign from the job once it has started.

To resign, you will need to tell everyone involved, in writing, that you are quitting. Unlike with a Power of Attorney, you do not need to first ask the Court for permission to quit.

Providing written notice makes it clear exactly when you resign. You should keep a copy of this notice for your records. This can help avoid confusion and misunderstanding later on.

In many cases, the Maker will have named a second person, and sometimes even a third person, as “alternate” Agents. When you resign, the next person named as an alternate gets a chance to take the job. If all of the people named as possible Agents cannot take the job, or will not take the job, then another interested person can apply to the Court to be a Guardian.

When you resign, you must give the new Agent or Guardian the records you kept during the time you were the Agent. These records will have to show that you did your job properly.

Be Aware

Resigning does not relieve you of any responsibility you had while you were the Agent. If you did something wrong during your time as Agent, you may still be held responsible.

​​​
Personal Directives: Responding to a court application for “advice and direction”

If an Agent is ever unsure about what to do, he or she can ask the Court of Queen’s Bench for ”advice and direction.” This can be especially helpful in situations that are sensitive or contentious (that is, involving strong disagreements or arguments).

If you have been served with documents saying that an Agent has applied to the Court for advice and direction, you can choose to respond. The forms you will need to file will be different depending on the situation.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
 

If you choose to respond, these issues can sometimes get very complicated. Consider talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and the Working with a Lawyer Information Pages for more information about your legal options.

Personal Directives: Making a complaint about an Agent

It is possible to file a formal complaint about an Agent with Alberta’s Office of the Public Guardian and Trustee.

To do so, there must be a reason to believe that:

  • the Agent is not following the terms of the Personal Directive, or not complying with his or her duties; and
  • this behaviour is likely to harm the adult physically or mentally.

For more information about filing a complaint about an Agent, see the following resources.

Web Complaints | How it works
Government of Alberta
English

Web Complaints | File a complaint
Government of Alberta
English

Web Complaints | Investigations
Government of Alberta
English
Personal Directives: Asking to remove an Agent from his or her duties

Sometimes, loved ones are so concerned about an Agent’s actions that they want to remove the Agent from power.

As a first step, you may wish to consider whether it would be possible to resolve your issues by talking with the Agent. Perhaps there is a misunderstanding that can be easily cleared up. Perhaps you could fix the problem through mediation. For more information, see the Alternative Dispute Resolution Information Page.

If this is not an option, there are several ways to try to remove an Agent.

  • You can file a complaint with the Office of the Public Guardian and Trustee (see the “Personal Directives: Making a complaint about an Agent” section above).
  • You could apply to the Court of Queen’s Bench to ask that the Agent be removed.
  • In certain circumstances, you could file an application for Guardianship. This would ask a court to temporarily appoint someone as a Guardian while the actions of the Agent are otherwise examined. However, even if you apply for Guardianship, you would still need to take separate action to remove the Agent (such as filing a complaint or starting a court action).

For more information about applying for Guardianship or Temporary Guardianship, see the “Adult Guardianship or Temporary Guardianship” section below.

Taking part in Advance Care Planning

It is always a good time to start Advance Care Planning. It’s important to start talking about your loved one’s wishes before he or she has a health crisis.

There are workbooks that can help you with the process in the following resources.

Interactive Advance Care Planning Workbook
Canadian Hospice Palliative Care Association
English

Interactive Advance Care Planning
Alberta Health Services
English
 

A key part of ACP is the conversations that are held with your family, loved ones, and health care professionals. Then, the decisions you reach together must be written down. When medical treatment is required, both loved ones and health care staff will want to see the ACP documents so that they know what the patient would have wanted them to do.

Wishes and beliefs may change over time. Be sure to keep conversations going with your loved one to help make sure that everyone knows his or her current wishes. It is also important to keep a written record of any changes.

To help make sure that your loved one’s wishes are recorded and known, Alberta Health Services provides plastic “Green Sleeves” to keep ACP documents together. A Green Sleeve can also hold a Goals of Care Designation, a Personal Directive, and a Power of Attorney. You can get a Green Sleeve from a doctor. For more information, see the following resources.

Web Advance Care Planning: Conversations Matter
Government of Alberta
English

Completing a Goals of Care Designation

In a Goals of Care Designation, health care is divided into 3 general categories:

  1. medical,
  2. resuscitative, and
  3. comfort.

Within each category there are sub-topics. For more information about what each of these categories means, see the following resource.

Web Advance Care Planning: Goals of Care Designations
Government of Alberta
English
 

A copy of the Goals of Care Designation Order is in the following resource. Remember, this is the order that will be completed and used by a doctor when treating your loved one. You do not need to fill out this form—it is only for your information.

PDF Goals of Care Designation (GCD) Order
Alberta Health Services
English
 

For more information about the things to consider when making a Goals of Care Designation, see the following resources.

Web Advance Care Planning: Goals of Care Designations
Government of Alberta
English

Web Advance Care Planning: Conversations Matter
Government of Alberta
English

Video Goals of Care Designations
Government of Alberta (via YouTube)
English

PDF Advance Care Planning and Goals of Care Designation
Alberta Health Services
English

Web Advance Care Planning
Fraser Health
Chinese, English, French, Punjabi
This resource is from outside Alberta. Learn more hereSee “Booklets and Brochures.”
 

To help make sure that your loved one’s wishes are recorded and known, Alberta Health Services provides plastic “Green Sleeves” for you to keep the Goals of Care Designation. A Green Sleeve can also hold Advance Care Planning documents, a Personal Directive, and a Power of Attorney. You can get a Green Sleeve from a doctor. For more information, see the following resources.

Web Advance Care Planning: Conversations Matter
Government of Alberta
English

Doctor-assisted dying

It is now legal for doctors and nurse practitioners to help people end their own lives, if they follow certain conditions and safeguards. This means that medical assistance in dying (MAID) is available in Canada.

How can this help be requested?

To help your loved one ask for medical assistance in dying, talk to his or her family doctor. Some doctors may refuse to provide MAID. In Alberta, if they refuse, they have “an obligation” to refer patients to a doctor or nurse practitioner who will perform the service. This must be done in a timely manner.

You can also call Health Link by dialing 811, where you can get more information and links to the care your loved one needs.

Be Aware

In Alberta, Catholic hospitals are currently refusing to provide MAID. This means that patients in such hospitals will have to move before being able to access MAID.

Alberta Health Services has also developed “Medical Assistance in Dying Care Coordination Teams” to act as a single point of contact for patients, families, and health care providers. They can be reached via email at MAID.CareTeams@ahs.ca.

For more information, see the following resources.

PDF Medical Assistance in Dying Care Coordination Service
Alberta Health Services
English


To download the form to request MAID, click on the link called “Record of Request for Medical Assistance in Dying (Form)” in the bottom section (Patients and Families) of the following resource.

Web Medical Assistance in Dying
Alberta Health Services
English

 

What will the process be?

Before providing medical assistance in dying, the doctor or nurse practitioner must go through several steps. They are as follows.

Get a written request from the patient. The patient must make and sign a written request, or fill in and sign a form, indicating that they want MAID.

If the patient can’t write, another adult can sign the request on their behalf. However this can only happen if the patient gives clear direction that that is what he or she wants. Also, the adult who signs:

  • must be at least 18 years old;
  • must understand what it means to ask for MAID; and
  • cannot benefit from the death of the patient. For example: if the adult is a beneficiary in the Will of the patient, that adult would not be allowed to sign the request on behalf of the patient.

Make sure the request is witnessed. The request must be signed by 2 “independent” witnesses. An independent witness:

  • must be at least 18 years old;
  • must understand what it means to ask for MAID;
  • cannot benefit from the death of the patient. For example: if the person is a beneficiary in the Will of the patient, that person would not be allowed to witness the request for MAID;
  • cannot be an owner or operator of a health care facility where the patient lives, or where the patient is getting care; and
  • cannot be directly involved in providing the patient with health care or personal care.

Make sure the patient is eligible. The doctor or nurse practitioner must find that the patient meets all of the conditions described above.

Get a second opinion. A second doctor or nurse practitioner must also provide a written opinion confirming that the patient is eligible. Neither of the doctors or nurse practitioners who give their opinions can:

  • hold a position of authority over the other doctor or nurse practitioner; or
  • knowingly benefit from the death of the patient.

Wait at least 10 days. There must be at least 10 days between the date of the written request and the date when the MAID is given. An exception to this 10-day rule can be made if:

  • the patient’s death is fast approaching; or
  • the patient might soon lose his or her capacity to provide informed consent.

Ask one last time before giving the MAID. Patients may withdraw their requests for MAID at any time in the process. If they choose to continue, they will be given a final chance to withdraw their request just before the MAID is given to them.

Be Aware

Because health care is provided by provinces and territories, each province and territory can come up with their own guidelines about MAID. These guidelines would have to work together with the new rules in the Criminal Code.

More information

For more information about MAID, see the following resources.

Web End-of-life care
Government of Canada
English

Web Soins en fin de vie
Government of Canada
French

PDF Medical Assistance in Dying
Centre for Public Legal Education Alberta
English

Web Provincial guidelines for medical assistance in dying
Estate Law Canada
English
This is a private source. Learn more here.

For more information about Alberta guidelines, see the following resources.

Web Medical Assistance in Dying
Alberta Health Services
English

Web Medical Assistance in Dying
College of Physicians & Surgeons of Alberta
English

Adult Guardianship or Temporary Guardianship

Applying for Guardianship

The application package for Guardianship is available below. The forms required for the capacity assessment are also available.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Guardianship,” “Capacity assessment,” and “Application kits.”

Web Become a guardian
Government of Alberta
English

 

Alberta Supports Centres can help with your application. For more information, see the following resources.

Web Application help
Government of Alberta
English

 
Tip

You can apply for Trusteeship at the same time. The forms you will need are also included the “Application kits” in the resource above.

The following resource describes the application process in detail. However, it is not available online. The link below will give you a preview of the resource, and you can find the full text at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Adult Guardianship and Trusteeship Act applications for legal support staff
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Applying for Temporary Guardianship

In certain time-sensitive situations, it may not be possible to complete the Guardianship application in time to make immediate decisions. This can be a problem if these decisions are not the kinds of decisions that are covered by specific decision-making. In such cases, you can apply to the Court of Queen’s Bench for an order of Temporary Guardianship. The judge may or may not grant the Order.

Tip

It is a good idea to check with the Office of the Public Guardian and Trustee before applying for Temporary Guardianship. They will be able to tell you if another decision-making option might be better for your situation. They can also help with the paperwork. See the following resources for contact information.


Web Application help
Government of Alberta
English
  

To apply for Temporary Guardianship, the Court will need 3 things from you:

  1. Form 39: Notice of Application and Hearing;
  2. Form 15: Affidavit of Applicant - Application for Appointment of Guardian, Trustee or Both; and
  3. Any supporting documents or evidence that shows why you need this Order.

For Form 39 and Form 15, see the following resource. Note that the forms only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Guardianship.”
 

If you are granted a Temporary Guardianship Order, you will need to inform the Office of the Public Guardian and Trustee. See the following resource for contact information.

 

A Temporary Guardianship Order lasts up to 90 days. However, in certain circumstances, it can be extended for up to 6 months. During this time, the applicant can then complete the usual Guardianship application (see above).

Getting help applying for Guardianship issues

If you need help applying for Guardianship, there are places that can help for free. See the following resources for contact information in your area.

Web Application help
Government of Alberta
English

Web Personal Decision Making Assistance
Kerby Centre
English

Web Guardianship Services
Seniors Association of Greater Edmonton
English

Being a Guardian

For information about what you must do as a Guardian, and what you are not allowed to do, see the following resources.


PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English





Web Is there an easy way for a guardian of an adult to keep records?
Estate Law Canada
English
This is a private source. Learn more here.

 

Asking for advice and direction from the Court

Sometimes, a Guardian may be unsure about what action to take. In these cases, a Guardian may ask the Court for advice. For more information and the forms you will need to do this, contact the Office of the Public Guardian and Trustee.

Asking the Court to “give effect” to a Guardian’s decision

If you are a Guardian and you need to apply for a court order to “give effect” to one of your decisions, contact the Office of the Public Guardian and Trustee for information about where to begin.

 

Making a complaint about, or asking to remove, a Guardian

It is possible to file a formal complaint about a Guardian. To do so, there has to be a reason to believe that:

  • the Guardian is not following the court order, or not complying with his or her duties, and
  • this behaviour is likely to harm the Represented Adult physically or mentally.

For more information about filing a complaint about a Guardian, see the following resources.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Complaints.”

Web Complaints | How it works
Government of Alberta
English

Web Complaints | File a complaint
Government of Alberta
English

Web Complaints | Investigations
Government of Alberta
English

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
Start on p. 23.
 

As part of your complaint, you can ask that a Guardian be removed. If you want to do this, you may wish to consider also talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages for more information about your legal options.

Reviewing a Guardianship Order

There are various reasons why a Guardianship Order might be reviewed. For example: the requirement for a review was included in the original Order, or the Represented Adult may have regained capacity.

For information about how to complete a Guardianship Review, see the following resources.

Web Guardianship review
Government of Alberta
English

Web Apply for guardianship review
Government of Alberta
English

Web Desk Application for Review of Guardianship Order
Government of Alberta
English

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Guardianship review” and “Application kits.”

Attorneys: Working with a Power of Attorney and understanding your role

The information in this section is for situations when an Enduring Power of Attorney has already been completed. If you are helping a person who still has capacity and that person wants to make an Enduring Power of Attorney, the information he or she needs is in the “Powers of Attorney” section of the Planning for Illness Information Page.

Bringing an Enduring Power of Attorney into effect

To bring a Power of Attorney into effect, the Donor must be declared to have lost capacity.

In general, the Donor will have said in the Enduring Power of Attorney who will make that decision. For example:

  • The Donor may have stated that his or her family doctor should decide.
  • Or, the Donor may have stated that 2 separate doctors must both agree that capacity has been lost.
  • Or, the Donor may have stated his or her spouse can decide (even if the spouse is not a doctor).

If the Enduring Power of Attorney does not say who will determine whether capacity has been lost, the law says that the decision will be made by 2 medical practitioners.

However, the Powers of Attorney Act does not provide a specific form to document the fact that a person has regained capacity. Instead, the person (or a loved one) can:

  • ask your doctor or your social worker if they have a form (some do, some do not);
  • ask a lawyer to create a form; or
  • use the Capacity Assessment Process under the Adult Guardianship and Trusteeship Act.

Being an Attorney

Being an Attorney is not an easy job. It also comes with legal responsibilities. It is critical that you understand what the job entails. You could end up in legal trouble if you do not.

For more detailed information on the role of an Attorney, see the following resource.

PDF Being an Attorney under an Enduring Power of Attorney
Centre for Public Legal Education Alberta
English
 

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Duties of Attorneys and Agents (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Bringing a Power of Attorney out of effect

Sometimes a person who lost capacity later regains capacity. If this occurs, medical staff could sign a document that states that the person has regained capacity, which would bring the Power of Attorney out of effect.

However, the Powers of Attorney Act does not provide a specific form to document the fact that a person has regained capacity. Instead, the person (or a loved one) can:

  • ask your doctor or your social worker if they have a form (some do, some do not);
  • ask a lawyer to create a form; or
  • use the Capacity Assessment Process under the Adult Guardianship and Trusteeship Act.
Attorneys: Asking the Court for “advice and direction”

If an Attorney is ever unsure about what to do, he or she can ask the Court of Queen’s Bench for ”advice and direction.” This can be especially helpful in situations that are sensitive or contentious (that is, involving strong disagreements or arguments).

Hiring a lawyer or representing yourself?

If you go to court, you can choose to either be represented by a lawyer, or to represent yourself.

If you hire a lawyer, your lawyer will explain to you what is happening with your case. A lawyer can help you reach an out-of-court agreement, or represent you in court. For more information about your options for legal representation and assistance, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

If you represent yourself, the Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
 

Also, the Court of Queen’s Bench has created a Court Procedure Booklet that has helpful information.

Before you go to court: Get to know the court system

The court process is not simple, and there are many rules. If you represent yourself, you will need to follow the required processes and the rules.

Chambers

If you are asking the Court for advice and direction, your matter will be heard in something called “chambers.” These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people.

  • In larger cities, there is “Dependent Adult Chambers.” Your matter may go here.
  • In other areas, there may not be this special kind of chambers. Instead, your matter may go to “Civil Chambers.”

In addition, there are 2 kinds of chambers:

  • regular chambers (sometimes called “morning chambers”); and
  • special chambers (sometimes called “afternoon chambers”).

Regular chambers is for simpler matters that can be heard in 20 minutes or less. Special chambers is for more complex matters that need more time.

Queen’s Bench “Practice Notes”

“Practice Notes” are additional rules issued by the Court, often about court procedures. These rules apply only in the Court of Queen’s Bench (not in Provincial Court). These rules are not just for lawyers—you must follow them even if you are representing yourself. For a list of the Practice Notes, see the following resource.

Web Court of Queen's Bench: Practice Notes
Government of Alberta
English
 

The parties involved

Asking the Court for advice and direction will involve more than just you and the judge. Specifically, you will have to inform the following people that are you are going to court.

  • The Donor
  • Any other legal representatives that the Donor may have (such as other Attorneys, Trustees, Agents, or Guardians)

Depending on the circumstances, you may also have to serve people who stand to inherit under the Donor’s Will. The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English

The rest of this section explains how you must keep the other parties involved in the process.

Scheduling hearings and giving notice to the other parties

The sections below will explain all of the paperwork that needs to be completed for chambers hearings. You will learn that there are rules about:

  • how to schedule hearing dates; and
  • when you have to let the other party know about the application. This is called “giving notice.”

The court has these rules to make sure that everyone has enough time to prepare for court and no one is taken by surprise. This leads to fairer results.

Because of this, courts are quite strict about the rules. However, sometimes there are good reasons to not follow the rules. In such cases, you may want to ask for an “exception” to the rules. This means you are asking for permission to not follow the rules.

For example, it may be possible to:

  • get time limits shortened for giving notice to the other party (this is also called “abridging” the time); and
  • get court dates moved up to an earlier date.
Be Aware

These changes in the rules are for special situations. There must be a very good reason to request an exception. Also, if you ask for an exception, there are very specific steps that you must follow.

For information about whether you can ask for any of these exceptions, contact the Court of Queen’s Bench in your judicial centre, or ask at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Before you go to court: Is this the right court to file in?

On this topic, there are 2 questions to ask:

  1. Is Alberta the right province in which to go to court? Should you be making your application in a different province or a different country? If both you and the Donor live in Alberta, Alberta will be the correct province. If the Donor now lives in another province, Alberta may not be the correct province. For more information about Powers of Attorney and out-of-province issues, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.
  2. Is this the correct judicial centre? Alberta is divided into several areas called “judicial centres” (previously called “judicial districts”). As a general rule, applicants file their documents in the courthouse in the judicial centre where they live. The matter can then be heard in that judicial centre as well.

If at any point you want to change the judicial centre, you will have to make a separate application for that. See the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents, especially if the violence provides the reason for any of your requests.

First-time applications for advice and direction

The first time you ask the Court for advice and direction, you will need to file 2 documents:

  1. An “Originating Application.” This is the form in which you explain what you are asking for.
  2. An “Affidavit.” This is the form in which you provide the information and evidence that the Court will need to be able to give you advice and direction.

These links only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.


Additional Applications for advice and direction

If you ask for advice and direction again, you will not need to file an “Originating Application” again. This is because the Court still has your Originating Application on file from the first time you applied.

Instead, you need to file 2 documents:

  1. An “Application.” This is the form in which you explain what you are asking for.
  2. An “Affidavit.” This is the form in which you provide the information and evidence that the Court will need to be able to give you advice and direction.

These links only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.


Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). This can be completed with a Commissioner for Oaths or a Notary Public. You can find Commissioners for Oaths and Notaries Public in the yellow pages of the telephone book or online at YellowPages.ca.

“Filing” the paperwork and choosing a court date

To file the paperwork, you must hand in the originals and multiple copies of everything—one copy of each document for you and one for each party that you must serve—at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
 

At the courthouse, and with the help of a court clerk, you will be able to pick a court date.

Depending on your location and the amount of time your matter is expected to take, you may have to appear in court in regular chambers (also called “morning chambers”) or in special chambers (also called “afternoon chambers”). The court clerk will help you figure out what time you are to appear. Regular chambers is for matters that can be heard in 20 minutes or less. Special chambers is for more complex matters that need more time.

When choosing a date, you will need to make sure you have enough time to “serve” the other parties (see the next step). You also need to give the other parties enough time to respond to your application.

After you have been given a court date, write it down on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is filed, you will need to “serve” it on the other parties. “Service” is the legal term for delivering certain kinds of documents. This is to notify them that a hearing is taking place. This means you have to make sure that they get the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

You will have to serve the Donor of the Power of Attorney, as well any other legal representatives that the Donor may have (such as other Agents, Guardians, Attorneys, or Trustees). Depending on the circumstances, you may also have to serve people who stand to inherit under the Will.

“Proving” that the paperwork was served

It is not enough for you to just serve the other parties: you must also prove that you served the other parties. To do so, the person who served the paperwork must swear an Affidavit of Personal Service.

Dealing with responses

The other parties may respond to your application. If this occurs, your matter may get much more complicated and you may wish to consult a lawyer. For more information about your options, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page. Resolution and Court Administration Services may also be able to help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

Plan to go to the chambers hearing

The Application tells you when and where court will be held. It is your responsibility to make sure that you are in the correct courtroom. When you enter the courthouse, you can ask a staff member for directions.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Preparing for chambers

You will be appearing in “chambers” in the Court of Queen’s Bench. Chambers is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people. Yours is one case on the list.

For most people, going to court will be a brand new experience. It may also come as a bit of surprise. Being in court is not really as it appears on most television shows, and you will likely not be familiar with the rules of court (yes, there are rules!). Also, most people find that dealing with family issues in court is stressful.

For these reasons, it is a good idea to prepare for the court experience. The following resources provide some very useful information on preparing for court.


For more information, see the Representing Yourself in Court Information Page.

Asking for an adjournment

Sometimes, due to circumstances beyond their control, one or both of the parties will not be able to attend court, or will not be prepared for court. It is possible to ask for a court hearing date to be moved. This is called an “adjournment.”

If all of the parties agree, you can arrange for an adjournment well in advance of the court hearing date. To find out how to do that, call your Court of Queen's Bench Chambers Clerk.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
 

You can also ask for an adjournment on the date of the court hearing. If all parties agree, you can ask for an adjournment before the chambers list begins. The judge will ask if there are any preliminary matters—this is the time to make the request. Judges often grant such adjournments, but not always (for example, if they are concerned that one of the parties will be harmed by the adjournment, or if they feel that the adjournment option has been abused). If any party does not agree, you must wait for your turn on the list and request an adjournment when your turn comes. The judge may or may not grant the adjournment.

You must have a good reason to ask for an adjournment. The Court is not pleased if adjournments are just asked for as a delay tactic. The Court keeps track of all adjournment requests. If there are too many requests for adjournments, the Court may deny the request or even impose penalties.

After the chambers hearing is over

When your court hearing is over, the judge will give you an Order providing direction. In most cases, the Order granted by the judge will be typed up by the court clerk. It may be ready shortly after the hearing. If it is not, it will be mailed to you. It will also be mailed to any other parties. If one of the parties is represented by a lawyer, the judge may ask that lawyer to type it up.

Once you have the Order, you may need to serve it on the other parties—check with the court clerks. Remember, if you do have to serve the other party, you will also need to complete and file an Affidavit of Service.

Powers of Attorney: Responding to a court application for “advice and direction”

If an Attorney is ever unsure about what to do, he or she can ask the Court of Queen’s Bench for ”advice and direction.” This can be especially helpful in situations that are sensitive or contentious (that is, involving strong disagreements or arguments).

If you have been served with documents that state an Attorney has applied to the Court for advice and direction, you can choose to respond. The forms you will need to file will be different depending on the situation.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
 

If you choose to respond, these issues can sometimes get very complicated. Consider talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages for more information about your legal options.

Attorneys: If you no longer want the job

It is possible for an Attorney to resign from the job once it has started.

To resign you will need to tell everyone involved, in writing, that you are quitting. Providing written notice makes it clear exactly when you resign. You should keep a copy of this notice for your records. This can help avoid confusion and misunderstanding later on.

However, before resigning you must first apply to the Court of Queen’s Bench for permission to quit (also called “renouncing”). The Court does not have to grant your request. Before considering whether to grant the request, the Court will ask for a full accounting of all financial transactions that you completed while you were the Attorney. This includes an update on the current balances and values of all assets, and an explanation for each expense (this process is sometimes called “passing of accounts”). Until the Court has approved the accounts and dismissed you from your role, you remain the Attorney.

In many cases, the Donor will have named a second person, and sometimes even a third person, as “alternate” Attorneys. When you resign, the next person named as an alternate gets a chance to take the job. If all of the people named as possible Attorneys cannot take the job, or will not take the job, then another interested person can apply to the Court to be a Trustee.

When you resign, you must give the new Attorney or Trustee the records you kept during the time you were the Attorney. These records will have to show that you did your job properly.

Be Aware

Resigning does not relieve you of any responsibility you had while you were the Attorney. If you did something wrong during your time as Attorney, you may still be held responsible.

This is a complex area of law, and you will want to make sure everything is in order before you ask to resign. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
Powers of Attorney: Asking to remove an Attorney from his or her duties

Sometimes, loved ones are so concerned about an Attorney’s actions that they want to remove the Attorney from power.

As a first step, you may wish to consider whether it would be possible to resolve your issues by talking with the Attorney. Perhaps there is a misunderstanding that can be easily cleared up. Perhaps you could fix the problem through mediation. For more information, see the Alternative Dispute Resolution Information Page.

If this is not an option:

  • You could apply to the Court of Queen’s Bench to ask that the Attorney be removed.
  • In certain circumstances, you could file an application for Trusteeship. This would ask a court to temporarily appoint someone as a Trustee while the actions of the Attorney are otherwise examined. However, even if you apply for some kind of Trusteeship, you would still need to take separate action to remove the Attorney.

For more information about applying for Trusteeship or Temporary Trusteeship, see the “Trusteeship or Temporary Trusteeship” section below.

Asking for an Attorney to be removed is a more complex legal issue and there are various ways to do this, each with multiple steps. Consider talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and the Working with a Lawyer Information Pages for more information about your legal options.

Be Aware

Unlike with an Agent under a Personal Directive, you cannot file a complaint with the Office of the Public Guardian and Trustee. That office does not have authority to investigate complaints against Attorneys.

For more information about what to do if you have concerns about how an Attorney is completing his or her duties, see the following resources.

Web When a POA is abusing his position, who do you talk to about it?
Estate Law Canada
English
This is a private source. Learn more here.


Web Power of attorney: It’s easily abused
MarketWatch, Inc.
English
This is a private source. Learn more hereSee “Taking steps against abuse.”

Web Jail term for theft by person holding power of attorney
Estate Law Canada
English
This is a private source. Learn more here.

Web Preventing and Intervening in Situations of Financial Abuse: Ontario
National Initiative for the Care of the Elderly
English
See “Misuse of Power of Attorney.” Note that this resource is from Ontario, so the phone numbers listed are for Ontario residents. However, there is good general information for Albertans too.

PDF Power of Attorney Abuse: Civil or Criminal?
Society of Notaries Public of British Columbia
English
This resource is from outside Alberta. Learn more here.
Informal trusteeships

Creating informal trusteeships

Informal trusteeships are set up by contacting each agency or government department separately and fill in each of their forms. Each organization will have its own forms. Often, each organization will have 2 separate forms:

  • a medical form, signed by a doctor, that indicates that the person who needs help has lost capacity (or has diminished capacity); and
  • a form in which the person who will be the Informal Trustee agrees to properly administer the money.

For links to the forms used by the most common agencies and government departments, see the following resource.

Web Informal trusteeship | How it works
Government of Alberta
English
 
Tip

If your loved one is creating informal trusteeships and has not yet completed a Personal Directive or a Power of Attorney, he or she may wish to consider doing so. He or she may need those documents in the future and once capacity is lost, it will be too late to create them.

Ending informal trusteeships

Each organization will have its own forms to end an informal trusteeship. You must contact each organization.

Trusteeship or Temporary Trusteeship

Applying for Trusteeship

The application package for Trusteeship is available below. The forms required for the capacity assessment are also available.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Trusteeship,” “Capacity assessment,” and “Application kits.”

 

Alberta Supports Centres can help with your application. For more information, see the following resources.

Web Application help
Government of Alberta
English

   
Tip

You can apply for Guardianship at the same time. The forms you will need are also included the “Application kits” in the resource above.

The following resource describes the application process in detail. However, it is not available online. The link below will give you a preview of the resource, and you can find the full text at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Adult Guardianship and Trusteeship Act applications for legal support staff
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Applying for Temporary Trusteeship

In certain time-sensitive situations, it may not be possible to complete the Trusteeship application in time to make immediate decisions. In such cases, you can apply to the Court of Queen’s Bench for an order of Temporary Trusteeship. The judge may or may not grant the Order.

Tip

It is a good idea to check with the Office of the Public Guardian and Trustee before applying for Temporary Trusteeship. They will be able to tell you if another decision-making option might be better for your situation. They can also help with the paperwork. See the following resources for contact information.


Web Application help
Government of Alberta
English
  

To apply for Temporary Trusteeship, the Court will need 3 things from you:

  1. Form 39: Notice of Application and Hearing;
  2. Form 15: Affidavit of Applicant - Application for Appointment of Guardian, Trustee or Both; and
  3. Any supporting documents or evidence that shows why you need this Order.

For Form 39 and Form 15, see the following resource. Note that the forms only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Trusteeship.”
  

If you are granted a Temporary Trusteeship Order, you will need to inform the Office of the Public Guardian and Trustee. See the following resource for contact information.

 

A Temporary Trusteeship Order lasts up to 90 days. However, in certain circumstances, it can be extended for up to 6 months. During this time, the applicant can then complete the usual Trusteeship application (see above).

Getting help with applying for Trusteeship

If you need help applying for Trusteeship, there are places that can help for free. See the following resource for contact information in your area.

Web Application help
Government of Alberta
English
 

Being a Trustee

For information about what you must do as a Trustee, and what you are not allowed to do, see the following resources.

PDF Tips for Newly Appointed Trustees
Government of Alberta
English

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 19-22.

Web Trusteeship
Centre for Public Legal Education Alberta
English

Web Trusteeship | How it works
Government of Alberta
English

PDF Seniors and the Law: A Resource Guide
Alberta Civil Liberties Research Centre
English
Start on p. 59.

Web Duties of court-appointed trustee for an incapacitated adult
Estate Law Canada
English
This is a private source. Learn more here.

Asking for advice and direction from the Court

Sometimes, a Trustee may be unsure about what action to take. In these cases, a Trustee may ask the Court for advice. For more information and the forms you will need to do this, contact the Office of the Public Guardian and Trustee.

Asking the Court to “give effect” to a Trustee’s decision

If you are a Trustee and you need to apply for a court order to “give effect” to one of your decisions, contact the Office of the Public Guardian and Trustee for information about where to begin.

Making a complaint about, or asking to remove, a Trustee

It is possible to file a formal complaint about a Trustee. To do so, there has to be a reason to believe that:

  • the Trustee is not following the court order, or not complying with his or her duties; and
  • this behaviour is likely to harm the adult financially.

For more information about filing a complaint about a Trustee, see the following resources.

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Complaints”

Web Complaints | How it works
Government of Alberta
English

Web Complaints | File a complaint
Government of Alberta
English

Web Complaints | Investigations
Government of Alberta
English

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
 

As part of your complaint, you can ask that a Trustee be removed. If you want to do this, you may wish to consider also talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages for more information about your legal options.

Reviewing a Trusteeship Order

There are various reasons why a Trusteeship Order might be reviewed. For example: the requirement for a review was included in the original Order, or the Represented Adult may have regained capacity.

For information about how to complete a Trusteeship Review, see the following resources.

Web Trusteeship review
Government of Alberta
English

Web Apply for trusteeship review
Government of Alberta
English


Web Guardianship & Trusteeship: Forms
Government of Alberta
English
See “Trusteeship review” and “Application kits.”

The Protection for Persons in Care Act: Reporting abuse

Reporting abuse

If you believe that an elder in care (also called a “client”) has been abused, you are required to report it as soon as possible.

Be Aware

People in care who have experienced abuse are not required to report their own abuse. If an abused person decides to report the abuse, he or she must make that report no later than two years from the date the incident occurred.

If the person is in immediate danger, call 911.

Otherwise, call the Protection for Persons in Care Information and Reporting Line at 1-888-357-9339. Staff at the reporting line can tell you whether the care situation is covered by the PPCA, and whether you should report elsewhere (for example: to the police or a health profession regulatory body). Note that this is not a crisis line. It only operates during the day on weekdays.

When you make a report, you must give your name and contact information. Staff members at Protection for Persons in Care will not reveal your name except in particular situations.

For more information on how to report abuse and what situations would require the release of your personal information, see the following resources.

PDF A Guide to Understanding the Protection for Persons in Care Act
Government of Alberta
English
See p. 6-7.

Web Protection for Persons in Care: Reporting abuse
Government of Alberta
English

What happens after you report abuse

Service providers are not allowed to take any action against you or the client because you have reported suspected abuse or helped with an investigation.

Someone who has been abused in care may want to change his or her living accommodations. For information about finding new accommodations that follow government standards, see the “Housing options” section on the Law tab of this Information Page.

More information

For more information about reporting the abuse of elders in care, see the following resources.

Web Protection for Persons in Care
Government of Alberta
English




Dealing with digital assets

Because there is very little law in this area, Agents and Attorneys may want to consider getting legal advice before attempting to access a person’s digital assets.

For more information, see the Working with a Lawyer Information Page.

Dealing with driver fitness and monitoring

For information about steps to take to deal with driver fitness and monitoring, see the following resource.

Web Driver Fitness and Monitoring
Government of Alberta
English
  

To report concerns about driver fitness, see the following resource.

Web Reporting Concerns About Driver Fitness
Government of Alberta
English
Housing

Home living

In Alberta, public housing options (also called “continuing care options”) can be broadly grouped into 3 categories:

  1. home living (with help);
  2. supportive living; and
  3. facility living (or “long term care”).

For information about how to determine which kind of housing might be right for your loved one, see the following resources.


Web Continuing Care: So You Need Some Help - Where to Start
Alberta Health Services
English
See “Moving to a Designated Living Option.”
 

For information on finding housing, including affordable housing, see the following resource.

Web Housing and rent assistance
Government of Alberta
English
  

If your loved one is also a senior, you may be able to get help from the Seniors Self-contained Housing Program. This program provides apartment-style accommodation to low-income and moderate-income seniors who are functionally independent (with or without the assistance of community-based services). For more information, see the following resources.

Web Seniors' Self-contained Housing Program
Government of Alberta
English

Interactive Find Housing
Government of Alberta
English

Finding supportive living accommodation

There are many different types of supportive living settings that support all kinds of needs. It is important to visit a number of them in order to find the one that best meets your loved one’s needs. You can contact individual facilities and ask for information about the fees and the services they provide. You can even tour the facilities.

For information about things to consider when choosing which facility your loved one needs, see the following resource.

 

To find supportive living facilities in your area, see the following resource.

Interactive Accommodation Search
Government of Alberta
English
If you use the “Advanced Search” option, you can choose the exact kind of supportive living facility you would like.
  

If your loved one is also a senior, you may be able to get help from the Seniors’ Lodge Program. This program provides affordable supportive living accommodations for low-income seniors. For more information, see the following resources.

Web Seniors' Lodge Program
Government of Alberta
English

Interactive Find Housing
Government of Alberta
English
  

Most organizations that support seniors and people with disabilities have lists of different supportive living options, and they can usually help you in your search. For more information, see the following resources.

Interactive Continuing Care Choices
Alberta Health Services
English

Interactive Accommodation Search
Government of Alberta
English
If you use the “Advanced Search” option, you can choose the exact kind of supportive living facility you would like.

Web Resources for seniors & families
Alberta Seniors Communities & Housing Association
English

Web Housing Information Services
Seniors Association of Greater Edmonton
English

Web Housing Referrals
Kerby Centre
English

PDF Housing List
Golden Circle Senior Resource Centre
English

Finding long-term care (“facility living” or “nursing homes”)

To find long-term care facilities in your area, see the following resource.

Interactive Accommodation Search
Government of Alberta
English
If you use the “Advanced Search” option, you can search for only long-term care facilities.
  

Most organizations that support seniors and people with disabilities have lists of different long-term care options, and they can usually help you in your search. For more information, see the following resources.

Interactive Continuing Care Choices
Alberta Health Services
English

Interactive Accommodation Search
Government of Alberta
English
If you use the “Advanced Search” option, you can choose the exact kind of supportive living facility you would like.

Web Resources for seniors & families
Alberta Seniors Communities & Housing Association
English

Web Housing Referrals
Kerby Centre
English

PDF Housing List
Golden Circle Senior Resource Centre
English

Requesting palliative care

To request palliative care, talk to your loved one’s doctor, Home Care case manager, or other member of the health care team.

For more information, see the following resources.

Web What is Palliative & End of Life Care?
Government of Alberta
English
See “How do I get it?”
Applying for employment-based benefits

Getting employment-based disability benefits

If your loved one was employed at the time the illness began, and if he or she has disability insurance through an employer, he or she may qualify for benefits under that plan. Each plan is different and the exact benefits depend on the terms of the plan. To find out what benefits might be available, contact the employer.

Applying for the Canada Pension Plan Disability Benefit

For information about applying for the Canada Pension Plan Disability Benefit, see the following resource.

Web Canada Pension Plan Disability Benefit - Overview
Government of Canada
English
See Steps 4 and 5.

Web Prestation d’invalidité du Régime de pensions du Canada – Aperçu
Government of Canada
French
See Steps 4 and 5.
 

For more information about the application process, see the following resources.

PDF CPP Disability
Disability Alliance BC
English

If your loved one applies for a CPP disability benefit and is denied, the decision can be appealed. For more information, see the following resources.

Web Canada Pension Plan Disability Benefit - Overview
Government of Canada
English
See Step 6.


Web Social Security Tribunal of Canada
Government of Canada
English

Be Aware

Choosing to apply for a CPP disability benefit instead of waiting until later to apply for the regular CPP benefit can have serious financial consequences. You may wish to consider getting legal advice. For more information, see the following resources.

Web CPP disability benefit versus early retirement pension
RetireHappy.ca
English
This is a private source. Learn more here.

PDF Pension Plan Issues with Progressive Disability
Parkinson Society British Columbia
English
This resource is from outside Alberta. Learn more here.

PDF When I'm 64: Benefits for Seniors
People's Law School
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Applying for Workers’ Compensation

To apply for workers’ compensation, you must first report the injury or illness to the Workers’ Compensation Board (WCB). Once you have done so, a WCB-Alberta adjudicator will review your claim. An adjudicator will determine if the claim meets legal requirements and policy requirements. He or she will contact you, the doctor, or the employer if more information is required to reach a decision.

For more information, see the following resources.

Web The claims process: For workers
Workers' Compensation Board - Alberta
Arabic, Chinese, English, French, German, Japanese, Korean, Polish, Portuguese, Punjabi, Somali, Spanish, Tagalog, Vietnamese

PDF WCB-Alberta Worker Handbook
Workers' Compensation Board - Alberta
English
Applying for Assured Income for the Severely Handicapped (AISH)

To apply for Assured Income for the Severely Handicapped (AISH), see the following resource.

Web Assured Income for the Severely Handicapped (AISH)
Government of Alberta
English
Applying for other benefits & assistance

When a person becomes ill, he or she may qualify for various kinds of government benefits and assistance. The kinds of assistance available may depend on your loved one’s:

  • age;
  • living arrangements; and/or
  • income.

For information about applying for the various benefits that are available, please see the Law tab of this Information Page.

Provincial Court

Queen's Bench

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