It is not necessary to hire a lawyer to apply for trusteeship, but it is highly recommended. A lawyer can not only help you through the process, but can also help you understand your responsibilities and even some options you may have.
Find a lawyer
If you do not already have a lawyer, you can ask a friend, colleague, or support group to recommend one. You can also call the Alberta Law Society's Lawyer Referral Service at 1-800-612-1095. They will provide you with the names of three experienced local lawyers who you can meet with for a free, half-hour consultation.
Be open and honest
Give your lawyer as much information about the situation as possible. They will need to know if you expect your application to be opposed, if you owe the dependent adult money, or if you have any special arrangements with the dependent adult, such as living rent-free in property owned by the dependent adult.
Important Note: There can be no conflict of interest between a trustee and a dependent adult.
Don't be afraid to talk about costs of the application
To avoid any misunderstanding, make sure you discuss legal fees and costs of the application with your lawyer. They can advise you on how you can save money on your fees. Most often, costs of the application are ordered to be paid by the estate of the dependent adult, but the Court can order a contribution towards the costs to be paid by the Crown in cases where there would be financial hardship on a dependent adult's estate, or even by the applicant in some cases.
Consider your alternatives
There are some alternatives to trusteeship. You should discuss these with your lawyer to see if they would be better suited to your situation.
Informal Trusteeship
If a person does not have significant assets to manage but needs help managing cheques issued by the government, informal trusteeship may be an option and may be arranged with the Department issuing the benefit cheque.
Enduring Power of Attorney
Depending on the mental capacity of the individual, he or she may be able to execute an Enduring Power of Attorney, to appoint someone to manage the individual's financial and legal affairs, now or in the future.
Make sure you have a Report of a Physician or a Psychologist
Your application must be accompanied with a Report of a Physician or a Psychologist. You should try to have this completed before your first visit with your lawyer. A blank Report of a Physician or a Psychologist can be found on the Office of the Public Trustee website, at: www.justice.gov.ab.ca/public_trustee/.
Maintenance payments
A trustee is allowed to use the funds of the adult for the maintenance, education, benefit and advancement of the adult's spouse or adult interdependent partner, minor child or any adult child of the dependent adult who has a physical or mental disability and is unable to earn a living.
If you are the applicant for trusteeship and expect to be paid maintenance from the dependent adult's estate, you should advise your lawyer of this. You may want to include in the Court Order a term pre-authorizing maintenance payments to yourself and other individuals. However, be careful, if the amount of the maintenance payments are fixed in the Court Order as it may not allow for extra discretionary payments if something unexpected occurs. A lawyer will be able to assist you with the proper wording for the Court Order.
Charitable Donations
A trustee is not allowed to make gifts or charitable donations from the dependent adult's estate without Court approval. If the dependent adult made regular charitable contributions or regular gifts to family members, make sure your lawyer is aware of this. It may be possible for the Court to pre-authorize charitable donations or gifting.
Special Authority
There are often special circumstances involved with looking after a dependent adult's financial affairs. For example, a dependent adult who is unlikely to be discharged from an institution often still holds the hope of returning to a normal life at home. It may be necessary to make arrangements in the Court Order allowing a trustee to delay a sale of a home or other assets in such circumstances.
If you own property jointly with the dependent adult, let your lawyer know so the Court can direct how to deal with the property.
If the proposed dependent adult is given a regular allowance for personal spending, you may wish to have the Court specifically authorize this expenditure. In that way, you as the trustee will not be required to provide an accounting to the Court of everything the dependent adult spends the personal allowance on.
Specific Court approval is needed to sell the dependent adult's real estate or personal property of a value over the amount set out in the regulations to the Dependent Adults Act.