AGTA - Frequently Asked Questions

What is the Adult Guardianship and Trusteeship Act (AGTA)?

The Adult Guardianship and Trusteeship Act (AGTA) is legislation that replaces the 30 year old Dependent Adults Act (DAA).

AGTA is mainly about providing decision-making options when an adult needs assistance or requires a substitute for personal and financial decisions.

AGTA received Royal Assent in December 2008 was proclaimed on October 30, 2009.

Why is the Act needed?

The Dependent Adults Act (DAA) was passed in 1978. Since then, the needs of Albertans have changed and legislation in this area needed to be developed to reflect these changes.

How does the AGTA respond to the concerns of Albertans?

A legislative review of the Dependent Adults Act and the Personal Directives Act began in 2005. The review involved extensive public consultations including a public survey, community meetings, focus groups with key stakeholders and dependent adults, and consultation with other jurisdictions.

Over 4,300 Albertans, from regular citizens to experts in the field, provided their personal stories, feedback, and recommendations about guardianship and trusteeship, and personal directive legislation in Alberta. The AGTA reflects what Albertans said they wanted and needed in this area to help themselves and each other when the ability to make decisions is lost. The Final Report and Recommendations from the review was released in January 2007.

What is the AGTA based on?

It is built on four guiding principles:

• The adult is presumed to have capacity and able to make decisions until the contrary is determined;
• The ability to communicate verbally is not a determination of capacity, the adult is entitled to communicate by any means that enables them to be understood;
• Focus on autonomy with a less intrusive and less restrictive approach; and
• Decision making that focuses on the best interests of the adult and how the adult would have made the decision if capable.

What are the key elements of the AGTA?

The AGTA clarifies and standardizes issues surrounding capacity assessment and allows for a range of supportive and substitute decision-making options. These options address the reality that adults have different levels of decision-making ability and that an adult's capacity may change over time.

The AGTA continuum avoids an “all or nothing” approach to mental capacity and substitute decision-making in relation to personal matters. The continuum allows adults to receive assistance according to their needs and to maintain as much autonomy as possible.

The continuum includes the following options (from least to most intrusive):

• Supported decision-making authorizations: These authorizations are a regulated form and allow an adult with capacity to designate a “supporter” to help them make decisions in personal matters. The authorization allows the supporter to access personal and health information to assist the adult in making the decision. The adult can terminate the authorization at any time.
• Co-decision-making orders for personal matters: Co-decision making orders can be used if an adult is assessed as having a significant impairment, but can still make decisions with assistance. A co-decision making order is a Court order and the adult must agree to it. Before granting the order, the Court must consider whether less intrusive options could meet the adult's needs. This provision is useful for families where there is a trusting relationship; for example, a wife assisting her husband who is in the early stages of dementia.
• Specific decision-making provisions: This provision is for when an adult has no personal directive or guardian. It covers situations where a health professional believes an adult cannot provide informed consent on a decision related to health care or temporary admission to a facility. In these circumstances a health professional can select a relative of the adult to make the decision or, as a last resort, the Office of the Public Guardian can make the decision.
• Temporary guardianship and trusteeship orders: These provisions apply to situations when an adult is believed to lack capacity and is in imminent danger of death, serious harm or financial loss if someone does not make a decision to prevent the death, harm or financial loss. A temporary Court order is required. The Court order can only last 90 days.
• Guardianship and trusteeship orders: These options remain available for adults assessed as incapable, but the application process allows for improved screening and information provision for prospective guardians and trustees. The new process also ensures the adult’s views are included in a report to the Court, if possible. The AGTA also provides the Court with additional guidance when granting an order. For example, the Court must consider whether less intrusive options could meet the person’s needs.

What changes are there to trusteeship?

A significant change with respect to trusteeship is that "certificates of incapacity" are no longer issued. Certificates allowed the Public Trustee to become trustee without Court involvement for adults living in certain facilities in Alberta. Provisions dealing with existing certificates have been transferred to the Public Trustee Act and existing certificates will be converted to Court orders over time.

Other changes to trusteeship include:

• Allowing individuals who live outside Alberta to be trustees with appropriate safeguards;
• Allowing private trustees, subject to specific restrictions, to make any financial decision the adult could have made if capable;
• Directing private trustees to follow the “prudent investor rule” of the Trustee Act;
• Giving private trustees limited authority to make gifts without specific court authority; and
• Allowing private trustees to choose to be compensated according to a fee schedule rather than always requiring the court to determine compensation on a case-by-case basis.

The Court also has discretion whether to require a trustee to submit their accounts for approval periodically.

How does the AGTA address abuse of the elderly and persons with disabilities?

Abuse of vulnerable people is a significant concern of this government and the AGTA makes considerable improvements in the area of protection in two ways:

• When someone applies to be a co-decision maker, guardian or trustee, they are screened as part of the application process. A proposed guardian or trustee must submit a guardianship or trusteeship plan for the Court’s approval. As well, the proposed assisted or represented adult will be interviewed to gain their views about the potential decision maker.
• When a co-decision making, guardianship, or trusteeship order is in place, the AGTA allows the Minister of Seniors and Community Supports to designate one or more individuals to receive and investigate complaints that an assisted or represented adult is being harmed by their co-decision maker, guardian, or trustee.

Where a complaint concerns the Public Guardian or Public Trustee, the Minister may appoint an independent complaints officer and investigator outside the Office of the Public Guardian (OPG) and Office of the Public Trustee (OPT) to handle concerns about the Public Guardian and Public Trustee.

How does the Office of the Public Guardian and Office of the Public Trustee handle investigations?

An Office of the Public Guardian staff member also acts as the complaints officer and receives written complaints that a private guardian, trustee, or co-decision-maker is not complying with their duties and the represented or assisted adult’s person or property may be harmed as a result of this failure. If the complaint meets this two-part threshold, the complaints officer will refer the matter to an investigator. Complaints involving private trustees and financial matters will be referred by the complaints officer to the Public Trustee for investigation. If a complaint is screened out, written reasons will be provided to the complainant and options will be provided for them to consider, such as providing more information, or contacting the Office of the Public Guardian.

The investigators have the authority to:

• Interview the adult and other parties about the investigation;
• Require production of relevant records from guardians, trustees, co-decision-makers, and service providers; and
• Apply for court orders permitting entry to premises where the adult resides and access to relevant records if the guardian refuses to allow access.

If the investigators are satisfied the complaint is founded, the investigators will notify the complainant and other parties specified in the regulations of their decision.

After this determination, the investigators may then attempt to resolve the complaint, through education or refer the complainant, the co-decision-maker, guardian or trustee to an alternative dispute resolution process. The investigators may also recommend that the Public Guardian or Public Trustee apply to Court for a guardianship or trusteeship order, or any other appropriate order. If the investigators determine a complaint is unfounded, written reasons will be provided to the complainant.

Is applying for guardianship and trusteeship confusing and expensive? How does the AGTA address these concerns?

Family members have consistently stepped forward to take on the responsibility of acting as a guardian or trustee for a loved one. There are currently over 9,000 private guardians and trustees in the province fulfilling this important role.

In consultations for the AGTA, Albertans told us they want to be informed and supported in their role as guardian or trustee.

The AGTA created a review officer role, which is carried out by the Office of the Public Guardian. The review officer provides information to the public and assists applicants with service requirements for Court applications. The Review Officer also provides the Court with a written report of the adult’s views and the suitability of the proposed co-decision makers, guardians, or trustees. These functions assist the public at the time of application by providing a "one-stop-shop" for issues related to the loss of mental capacity and substitute decision-making.

How does the AGTA affect me if I was a Guardian or Trustee under the old legislation?

The AGTA offers Albertans more choices than ever for receiving the support they need, when they need it, to make decisions about their physical, financial, and mental well-being. New safeguards protect those who no longer have the capacity to make decisions through screening processes and complaints investigation. The court order that granted you authority is still in effect under the AGTA.

The AGTA balances protecting Albertans who are unable to make decisions for themselves while respecting their desire to be as independent as possible for as long as possible.

For more information, please contact Office of the Public Guardian at 1-877-427-4525 or go online to: www.seniors.alberta.ca/opg