When an individual lacks the mental or physical capacity to care for themselves it can be extremely difficult for those close to that person, including friends and family members already engaged in a caring role.
It is a very difficult circumstance as those tasked with caring for individuals that do no have capacity likely do not have authority to make the decisions that need to be made for this person. Further, individuals may find themselves being told they have made decisions that they did not have the authority to do and are being held to account for trying to care for those individuals. To this end, it is essential that one avoids the pitfalls of incorrectly acting without the legal authority for decision making.
Has a capacity assessment been completed?
First there needs to be confirmation that a person lacks capacity which is not an informal process or forgone conclusion, rather this is only found after completing a specific process here in Alberta that confirms mental incapacity.
This must be completed by a medical professional who is authorized to complete such a capacity assessment. Additionally, this process for mental incapacity is not an automatic encompassing determination on all decision making, rather a lack of capacity can be specific to limited areas, with a determination being more encompassing as part of a comprehensive capacity assessment.
What is the next step after a capacity assessment has been completed?
Once a capacity assessment has been completed it will need to be determined if the person has a personal directive or a power of attorney. Unfortunately, many individuals have not undertaken to execute a personal directive or power of attorney.
As a result, if there is a loss of capacity, or if there is a need to have a formalized process in place for an induvial who has lacked capacity for some time, there likely then is no opportunity to remedy this without the assistance of the court.
It is essential to note, that without these documents being completed with the required formal steps needed for either a personal directive or power of attorney, a court order is required to obtain legal decision making over financial or non-financial decision making.
Making a trustee and/or guardianship application?
Guardianship and trustee applications are granted by the Court of Kings Bench of Alberta through a very specific application process. This application includes a detailed submission of information and sworn and affirmed evidence of the applicant.
Both applications concern an individual who is termed as the “represented adult”, which the proposed trustee or guardian is applying to have decision making over.
The Applicant is required to provide complete biographical information regarding the represented adult, in addition to providing sufficient rationale for why they should be given the opportunity to be a guardian or trustee.
Finally, through this process the Office of the Public Guardian and Trustee will need to be engaged with, and a complete review will need to be conducted wherein the Office of the Public Guardian and Trustee confirms their position on the application.
At Family Central Law we have worked with clients from beginning to end to complete guardianship and trustee applications. If you are seeking strong and competent legal assistance to successfully support you through this process, kindly contact our office today.
At Family Central Law Office, you can rely on experienced family lawyers to provide sound legal advice on your family law matters. Please contact us today for a free consultation with our family lawyers by calling our office at 1-866-278-4187, or emailing info@familycentrallaw.com, or by clicking on our consultation page.
