GUARDIANSHIP ORIENTATION AN OVERVIEW OF THE ALBERTA GUARDIANSHIP AND TRUSTEESHIP ACT: IT’S APPLICATIONS AND IMPLICATIONS AS IT PERTAINS TO SUPPORTED DECISION MAKING. Presented in Partnership by: Sage’s Guardianship Program is funded by Alberta Seniors and Community Supports, Office of the Public Guardian
Introduction Sage offers the Guardianship Orientation session to provide an overview of the Adult Guardianship and Trusteeship Act, and the application process. In this orientation, we will discuss some key components of the Adult Guardianship and Trusteeship Act, which governs supported decision-making in Alberta. We will review what decision making options are available and how to get the process underway using the self-help kit provided by the Office of the Public Guardian. Our hope today is that you gain the information about the various decision making options to best equip you in the application process, and for you to know there is help available along the way.
Overview We recognize that for some of you with is your first application and for others it may be a review of your Order. The application process has changed, and become more ‘self directed’. It has become easier in some aspects, however, more input is required from applicants/ guardians/ alternate guardians etc. The Alberta Guardianship and Trusteeship Act sets out the necessary legal process for granting power of substitute decision making to someone else, on behalf of the adult (over 18) who cannot make their own personal, health, and/ or financial decisions. The AGTA replaces the 30 year old Dependent Adult Act. The term “dependant adult “ is no longer used. “Assisted adult” (Co. Decision Making) or “represented adult” (as in the case for Guardianship & Trusteeship) – reflect a more positive view of the represented adult.
Adult Guardianship and Trusteeship Act The changes in the AGTA reflects Alberta’s societal shifts, including: Aging population The AGTA reflects the UN Convention on Rights of Persons with Disabilities. Provides a continuum of options for decision-making, rather than all or nothing approach. The Adult Guardianship and Trusteeship Act (AGTA) came into force on October 30, 2009, replacing the 30 year-old Dependent Adults Act (DAA). AGTA is for adults over the age of 18 years who are unable to make personal or financial decisions for themselves. This legislation addresses the current needs of Albertans by providing options and safeguards to protect vulnerable adults who may want assistance or are no longer able to make all of their own decisions.
Guiding Principles The Act is to be interpreted and administered in accordance with the following 4 guiding principles: 1. An adult is presumed to have the mental capacity to make decisions, until the contrary is determined. This is done through a Capacity Assessment Report (which will be covered a little later in this presentation) 2. Communication method is not relevant to the determination of capacity. An adult is entitled to communicate by any means that enables them to be understood, and the means by which they communicate is not relevant to a determination of whether the adult has the capacity to make a decision. In other words, the inability to communicate verbally does not necessarily mean the person lacks capacity. Hearing aids, sign language, technology or interpreters should be provided as needed when assessing a person’s capacity.
Guiding Principles cont’d… 3. Autonomy is to be maintained through least intrusive and least restrictive measures. Where an adult requires assistance to make a decision, or does not have the capacity to make a decision, the persons independence must be preserved by ensuring that the least invasive form of assisted or substitute decision-making option that is likely to be effective, is provided. Something to think about: At what point would you want someone else to make decisions for you?
Guiding Principles cont’d… 4. In determining whether a decision is in an adult’s best interests, considerations must be given to: any prior wishes known to have been expressed by the adult any values and beliefs known to have been held by the adult while the adult had previous capacity. In other words if they did not lack capacity, what would be their decision? Substitute decision making can be more difficult than making our own decisions. We need to understand their personality, wishes, values and beliefs.
Key Concepts The Act allows for new decision making options designed to provide as much autonomy as possible The Act balances autonomy (independence) with protection. There are more safeguards built in. There are more steps for new applicants to become codecision makers, guardians or trustees. There is a new complaints process if there are concerns with the existing Order. There a continuum of supported decision making options, ranging from Supported Decision-Making through to Guardianship and / or Trusteeship.
Capacity is defined in the Act as: “in the respect of the making of a decision about a matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of making the decision, or failing to make a decision. ” The new AGTA views capacity on a continuum rather, than something you have, or don’t have and is reflected in the different levels of options available: Supported Decision Making Specific Decision Making Co-Decision Making Guardianship Trusteeship
Capacity Assessment In order to begin an application for Co-Decision Making, Guardianship, and/or Trusteeship, a Capacity Assessment Report is required. **It is highly advisable to have a completed Capacity Assessment Report before beginning the application forms** An assessment is needed to determine where the potentially assisted adult lies on the continuum of capacity. This assessment process is standardized and focuses on both cognitive and functional abilities – not just an IQ score. Targets the types of decisions the adult will need to make. Identifies the level of assistance needed (on the continuum).
Capacity Assessment cont’d… The AGTA allows for physicians and psychologists and other trained professionals (SW, OT, RN) to assess an adult’s capacity for purposes of court-order applications. The Office of the Public Guardian has a list of assessors if needed. Information available online: http: //www. humanservices. alberta. ca/opg/capacityassessors or phone: 780 -638 -3501 The Assessor conducts the interview and then provides a summary and recommendations. What they give you is the Capacity Assessment Report (either Form 3 or Form 4). Ask for the original. Forms are available online: http: //www. humanservice. alberta. ca/opg/Capacity. Assessment
Capacity Assessment cont’d… Very important points: The Capacity Assessment Report must be completed no more than 6 months prior to application. If adult is 17, complete application documents within the 6 month period. The Order comes into effect on 18 th birthday. You may require a NEW Capacity Assessment Report if your application is not submitted to the court within 6 months of the date the Capacity Assessment Report was completed. There may be a cost associated with the assessment - maximum of $500 ($700 if including Trusteeship) If the costs are a financial hardship that inhibit you from proceeding, you would need to contact the OPG office prior to obtaining capacity assessment. You require the original CAR, to submit to the court with your application.
CONTINUUM OF DECISION MAKING OPTIONS Adult Makes Decisions Supported Decision-making Authorization Has Capacity Co-Decision. Making Specific Decision-Making and Emergency Decision-Making Significant Capacity Impairment Temporary Guardianship/ Trusteeship Guardianship, Trusteeship and Protection Temporary lack of Capacity Lacks Capacity
Considerations So how do you know which option is best? (refer to continuum) Talk to Doctor. Purpose of the Capacity Assessment Report. Ideally the Guardian, Trustee or co-Decision Maker is someone who knows the adult and has a vested interest. The Public Guardian or Public Trustee only steps in when there is no one else suitable. Role of Alternate Guardians / Alternate Trustees – to act as decision makers when Guardians /Trustees are unable to act. Consider again that the intent of the new Act is to maintain, and foster as much autonomy for the Assisted Adult as possible. The emphasis is on “support” rather than “control”
Co-Decision Making Is an alternative to full Guardianship for adults whose ability to make personal decisions is significantly impaired but they can still make some decisions with support. Supported Decision Making must be ruled out as a viable option first The assisted adult would voluntarily agree to this arrangement and also be agreeable to the person(s) who is appointed as the co-decision maker. All decisions would be made jointly Limited to personal matters (excludes financial matters or property) Capacity Assessment Report is needed for the purposes of a court-order application (Form 3).
Guardianship If an adult lacks the capacity to make personal decisions the court may appoint a Guardian to make decisions for them. Areas of Authority would include: health care, living arrangements, who they associate with, social activities, education, employment, and non-financial legal matters. Does not include financial decisions (this falls under Trusteeship or Informal Trusteeship) A Capacity Assessment Report (Form 4) for the purposes of a court order application is required – and will indicate the areas the person lacks capacity, and needs assistance making decisions.
Trusteeship applications can be made when an adult is viewed as unable to make their own financial decisions. There are two options: Formal Trusteeship (court ordered): If the adult has some registered savings products at a financial institution, or assets such as property, then Formal Trustee may be required to deal with those assets. To apply formal court appointed trusteeship, you need to complete the trustee related questions in the application forms, a trusteeship plan and provide an inventory. Documents are part of the self-help kits.
Trusteeship Cont’d… Informal Trusteeship: Is not court ordered. If the adult has minimal assets, and only needs help managing a monthly government cheque, then informal trusteeship can be arranged. An individual can be named as an ‘Administrator’ on file with various government income programs. This includes AISH, Income Support, CPP, OAS and Alberta Seniors Benefit, as well as Veterans Affairs. Each income program will have their own paperwork you need to complete. This usually includes having another physician report indicating the individual does not have the ability to manage his or her finances. Contact the relevant government income programs to confirm their requirements for informal trusteeship. You may also set up a joint bank account, to be able to assist with day-today finances and banking. You would complete the necessary forms required by the bank – it is best to speak to the staff at the specific bank to find out what they require.
Decision Maker Suitability Each new Guardian, Alternate Guardian, Trustee, Alternate Trustee and Co-decision Maker must provide: 2 Personal/character references Criminal record check Staff on behalf of the Office of the Public Guardian will complete a background check which includes contacting personal references and completing a Criminal Record Check Credit Report for Trustee and Alternate Trustees. If you are an existing Guardian/Alternate Guardian; Trustee/Alternate Trustee, completing a background check or providing references is not necessary if you are doing a Review Application of your existing Order.
Application Forms Application forms for Co-Decision Making, Guardianship and/or Trusteeship are available either online, or as printed Self-Help Kits. The online forms can be accessed from the Office of the Public Guardian website: http: //www. humanservices. alberta. ca/opg/guardianship/forms Please Note: It is easier to fill out the forms online, and save them to your computer or a ‘flash drive’. There are many drop down boxes and areas that can expand, as opposed to the printed paper forms. If you are printing forms from the website, you want to ensure that the Application includes enough space to name all required family members, and Guardianship / Trusteeship Plans include enough space to enter each proposed Guardian / Alternate Guardian, and Trustee / Alternate Trustee “Hard copy” application forms are also available from Sage or the Office of the Public Guardian.
Other Decision-Making Options (non Court Ordered) Non-Court Ordered decision making options include: Personal Decision-Making: Supported Decision-Making (completed when a person has capacity) Personal Directive (completed when a person has capacity) Specific Decision-Making (when a person does not have capacity) Financial Decision-Making: Power of Attorney / Enduring Power of Attorney (completed when a person has capacity) If a person does not have capacity, the only other options are through Informal or formal Trusteeship
Supported Decision Making This option is for Albertans who have capacity and can make their own decisions but would like some help from someone they trust to be their ‘supporter’. The adult can give their supporter(s) legal permission to obtain relevant information that might otherwise be protected under the privacy laws. Obtaining information from a doctor for example. Supported Decision-Making can become effective immediately – while the adult has capacity. This is very useful for many of us who have elderly parents who don’t fully understand their medication or parents whose first language is not English. It’s effective only while the person has capacity – it is no longer in effect if a person ‘loses’ capacity, and does not cover financial matters. These do not require a Capacity Assessment
Personal Directive A Personal Directive is a written, signed, dated and witnessed legal document that allows you to name a person you trust to make personal and health related decisions on your behalf in the event you no longer have the capacity to make decisions. A Personal Directive comes into effect if a person loses capacity. Capacity is determined by a physician before a Personal Directive become ‘enacted’ All capable Albertans should have a Personal Directive. (If you have a PD no one would need to apply for guardianship on your behalf). Self Help kits are available through the Office of the Public Guardian and Sage
Specific Decision-Making Applies in situations when an adult lacks capacity and does not have a Personal Directive or a court-ordered Guardian. Initiated by health care providers, the Specific Decision-Making form gives the authority to select a decision maker from a list of family members to make decisions regarding health care, temporary or permanent admission to a facility, etc. This is a ‘once or twice’ option. Example: mom in hospital following a stroke – getting moved from acute care to sub acute, or to a long term facility. Example: 20 yr. old son needs dental surgery The Specific Decision Making form can be completed, in order to grant authority for specific decisions to be made.
Emergency Decision Making A physician may provide emergency health care to save a life, prevent serious physical /mental harm or alleviate severe pain, when an adult cannot provide consent. Example: your spouse arrives at hospital following a car accident unconscious.
Enduring Power of Attorney Is a written, signed, dated and witnessed legal document that gives someone else the authority, to act on your behalf with respect to your financial affairs, including handling your debts. An Enduring Power of Attorney can be written so that it becomes effective immediately or only in the case that you no longer have the mental capacity to make or understand financial decisions. Depending on the situation, a person with a disability may have the capacity to sign an Enduring Power of Attorney. One does not need a lawyer to draw up a an EPA, however it is recommended that an Enduring Power of Attorney document is completed with a lawyer, as most financial institutions are now requiring this. As well, the lawyer will ensure that they believe the individual is able to understand the document before it is signed. Land Titles does not accept any EPA that does not have a lawyer’s certificate of independent advice attached to it due to potential fraud issues.
Help is available Sage’s Guardianship Program is funded by the Office of the Public Guardian to provide assistance to individuals completing the Self Help Kits. Staff are available for: Orientation Sessions that review application process and forms Phone consultation In-person consultation – appointments can be arranged Sage staff can provide assistance to you in completing the forms, reviewing application forms, and completing the Affidavit (including acting as a Commissioner of Oaths). Contact: Guardianship Program Coordinator 780 -701 -9006
Helpful Links Application forms from the Office of the Public Guardian: http: //www. humanservices. alberta. ca/opg/guardianship/forms Sage: http: //www. mysage. ca/guardianship. cfm Gateway Association – “A starting place for families living with intellectual disabilities” http: //www. gatewayassociation. ca/ Information about planning documents: personal directives and power of attorney: http: //www. cplea. ca Information about the continuum of decision-making options: http: //www. humanservices. alberta. ca/opg/guardianship/options/
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