Whether due to illness or injury, it is not uncommon to have a family member who becomes incapable of making all of their own decisions. This can range from needing a little bit of help making sure they remember to pay their bills, to requiring someone to decide when to sell their home and move them into a care facility.
The person’s needs will dictate whether they need a guardian, a trustee or both. Our Edmonton estate lawyers can answer any questions you have regarding the differences between a guardian and a trustee in Alberta.
What Is A Guardian?
The term guardian can refer to an adult who has the care of a minor child. An adult guardianship, however, is when an adult has the authority to make personal decisions for another adult who lacks the capacity to make those decisions for themselves.
What Is A Trustee?
A trustee is a person who has been assigned to make financial decisions for an adult who lacks the capacity to make their own decisions. A trustee is often a friend or relative of the vulnerable person, but a trust company or the public trustee may be assigned if there is no friend or relative willing to take on the task, or if the person’s financial situation is particularly complicated.
How Are Guardians And Trustees Assigned?
A court must assign either a guardian or a trustee. Sometimes a person will require both and the court can assign a different person to each role, or one person to perform both functions.
In order to apply to the court for a trusteeship order, a capacity assessment must be completed by a specified healthcare professional. The court will also want to see a background check on any proposed trustees. The entire process of obtaining a trusteeship or guardianship order takes about six months.
If there is an urgent financial matter that needs to be dealt with, the Office of the Public Guardian and Trustee may be able to help by obtaining a temporary trusteeship or guardianship on a short-term basis or an order to deal with a specific problem.
What Are The Powers Of Guardians And Trustees?
A guardian can only make personal decisions for the person in question. They can make decisions about where the person will live, who they will interact with, and make decisions related to healthcare, education and recreation.
A trustee can only make decisions about a person’s finances. They can help pay bills, manage investments and apply for pension or disability benefits on the person’s behalf. The trustee must have express permission from the court in order to sell the person’s home or any other real estate.
What Is A Review Of A Guardianship Or Trusteeship?
A trusteeship can be reviewed by the court. This can be done at the request of the trustee or a concerned party. A trusteeship order may come with a predetermined review date or a deadline for examination and approval of the trusteeship accounts, which means that the court wants the opportunity to examine the records that the trustee has been keeping to make sure they are doing a good job.
An adult guardianship can also be reviewed. A review date may be built into the guardianship order or a review may become necessary if the adult under guardianship has a change in capacity (requiring more or less support) or their needs change for some other reason.
Can You Avoid The Need To Have A Guardian Or Trustee Assigned?
A person with a personal directive does not need to have an adult guardian assigned by the court. Similarly, a person with an enduring power of attorney will not need a trustee, provided the enduring power of attorney does not come to an end when the person loses decision-making capacity. Our lawyers can help you distinguish the differences between a guardian and a trustee in Alberta. Contact our team today for more information.
Contact Verhaeghe Law Office’s Edmonton Estate Lawyers Today For Legal Advice On Estate Administration in Alberta
If you require legal assistance from an Edmonton estate lawyer, contact our law firm to book a consultation. Our lawyers are proud to represent clients across Alberta. You can schedule a consultation today by dialling (587) 410-2500.
*Disclaimer: Please note that this article is intended to act as a general overview of a legal topic, and is not intended to constitute legal advice. For legal assistance with estate matters, please consult an Edmonton estate lawyer.
