Trusteeship

Decision-making authority

An adult who has lost capacity to make decisions needs support. A court order may be needed for someone to help the adult by acting as:

• an adult trustee for their financial decisions
• an adult guardian for their personal decisions
• both trustee and guardian for all their decisions

If you become a trustee, the court gives you legal authority to make financial decisions for the adult.

Who needs a trustee

Adults who need a trustee

• are 18 years of age or older
• have had a capacity assessment completed indicating they lack capacity to make financial decisions
• less intrusive and less restrictive options would not adequately protect the adult’s financial interests
• do not have an enduring power of attorney and need someone to make financial decisions for them
• do not have the capacity to make a power of attorney
• have assets or financial interests in need of protection

Minors who will need a trustee when they become adults

• will be 18 years old in the next year
• will need someone to make their financial decisions after they become an adult

If you want the court order to go into effect when the minor turns 18, you should apply as soon as possible after the minor turns 17.

What a trustee does

A trustee:

• manages the adult’s money to pay their:
  • bills (daily and recurring expenses)
  • accommodation and care charges as needed
  • education and medical-related expenses
  • other needs specific to the adult
• manages the adult’s investments, real estate and personal property
• applies for the adult’s financial benefits like Assured Income for the Severely Handicapped (AISH ), Old Age Security and Alberta Seniors Benefit
• files the adult’s income tax return

Trustees cannot make decisions about personal matters like:

• medical treatment
• where the adult lives

Is trusteeship needed?

You may want to look into other options for financial decision-making, such as:

• informal trusteeship
• an enduring power of attorney

Adult guardianship

You may also want to consider personal decision-making options, such as:

• specific decision-making
• adult guardianship

You can apply to become both a trustee and a guardian at the same time.

How long it will take

A trusteeship application usually takes 6 months – from the time your paperwork is ready to be submitted to court – before the court makes a decision.

Urgent situation

If the decision is urgent – in immediate danger of suffering serious financial loss – you can apply for an urgent order.

Before you apply, ensure the decision is truly urgent and take into account other considerations by reviewing this document:

Urgent Guardianship and Trustee Orders

To apply for an urgent order:

Step 1: Fill out the forms

You must fill out these forms:

Form 15: Affidavit of Applicant

Form 39: Notice of Application and Hearing

Form 18: Urgent Order

Step 2: File your documents

You or your lawyer will:

• file your application with the clerk of the Court of King’s Bench
• set a hearing date
• send a Notice of Application and hearing to all the interested parties

When you file your application

You will need to pay a $250 court filing fee when you file your application.

Payments can be made at the courthouse either:

• electronically, through a credit or debit card
• by a cheque or money order made out to the Government of Alberta, included with your application

If you are working with a lawyer, your lawyer will help you with this.

If the adult will require trusteeship decision-making when the urgent order expires, a full trusteeship application is required.

Real estate

A trustee, other than the Public Trustee, must have specific permission from the court to sell the adult’s:

• home
• other real estate

If you know you are going to have to sell property, you must apply for this authority in your application.

Cost

There are costs for different parts of this process:

• legal fees – if you use a lawyer to complete the application
• capacity assessment – charged by the capacity assessor for the completion of the assessment
• court filing fees – up to $250 for the court to process your documentation
• background check fee – for the background check to be completed so the results can be provided to the court with your application

If the costs of an AGTA court application are a hardship for the applicant and adult, the applicant can apply to have some of the costs covered by the Government of Alberta.

• If financial hardship has been indicated on the AGTA application, a Hardship Application for Costs Against the Crown form will be sent to the applicant to fill out.
• Complete the Hardship Application for Costs Against the Crown form and submit it with supporting documentation.

Requirements to be a trustee

To be a trustee, you must:

• be 18 years of age or older
• consent to being a trustee
• consider the views and wishes of the adult
• act in the best interest of the adult
• be suitable to be appointed as trustee
• complete a criminal record check, credit check and reference checks – following the OPGT’s process
• provide a bond or ask the court to dispense with the bond if the proposed trustee or alternate trustee is not ordinarily a resident of Alberta

When there is no one else

If no one is willing or available to help, the Public Trustee may consider becoming the trustee if appropriate.

To make a referral to the Public Trustee, fill out this form:

OPGT Referral

The Public Trustee will consider being the trustee for an adult if:

• the capacity assessment report states that the person does not have capacity to make financial decisions
• less intrusive options like informal trusteeship would not protect the adult’s financial interests
• it is in the adult’s best interest
• no other person, including a trust corporation, is likely to apply to become trustee within a reasonable time
• the adult is likely to suffer serious financial loss if a trustee is not appointed within a reasonable time

Your responsibilities as an adult’s trustee

As a trustee, you are authorized to make financial decisions for the adult.  This means you also have a responsibility to:

• act in the adult’s best interest
• only make decisions that the court order allows you to make – and according to the submitted trusteeship plan
• pay for things from the adult’s funds that the adult requires for care, support and education
• act honestly and reasonably
• exercise the care, skill and diligence that a reasonably prudent person would exercise in managing their own finances
• make reasonable efforts to determine whether the adult has a will and keep it safe
• keep the adult’s financial matters and accounts separate from those of the trustee
• keep good records, including receipts, bills and statements, for all transactions – these may be required by the court for an examination and approval of accounts

A trustee has a responsibility to:

• only access information that has been authorized and is needed for a decision
• keep personal information about the adult safe from unauthorized access, use or disclosure

Apply to be an adult’s trustee

To be an adult’s trustee – and to ensure you follow the correct process and complete the correct paperwork – you need to consider which way to apply:

1. You need to consider which decisions the adult needs assistance with:
   • financial decisions only (trusteeship)
   • financial and personal decisions (trusteeship and guardianship)
2. You need to decide to apply without a hearing (desk application) or with a hearing:

1. You need to decide to apply for one of these options:
   • trusteeship – desk application
   • trusteeship and guardianship – desk application
   • trusteeship – with a hearing
   • trusteeship and guardianship – with a hearing

To start the application process

Select the one option below that best meets the adult’s situation:

When a court order is granted

The newly appointed trustee is legally responsible to provide a copy of the court order to:

• the adult
• other interested parties
• the OPGT

Read the court order carefully to learn:

• who has been appointed
• what authority has been granted
• when the order needs to be reviewed
• the date for examination and approval of trusteeship accounts
• any other provisions

Publications

Decision-Making Options: Adult Guardianship and the Trusteeship Act

Related

• Adult guardianship