Notice to Readers
Providing Assistance With Finances to a Disabled Person
Sample Forms
Notice to Readers
This web page was prepared as a public service to Albertans by the Office of the Public Trustee of Alberta Justice.
This web page is intended to give information about informal trusteeship. It is not intended to give legal advice for which a lawyer should be retained. The relevant legislation should also be consulted.
The Public Trustee does not warrant the outcome or result of using the information in this publication.
The law and its interpretation by the Courts frequently change.
Providing Assistance With Finances to a Disabled Person
Some people who suffer from a mental disability require assistance with financial decision making. The amount of assistance required depends on the nature of the disability, the nature of the property owned by the disabled person, and the availability and suitability of individuals prepared to provide assistance.
If a limited amount of assistance is needed, a disabled person may give written permission for the cheque to be sent to the address of a relative or friend. That person would be expected to take the cheque to the disabled person and ensure that his or her obligations were met. While this may appear to be a convenient method, it places the disabled person at the risk of theft or fraud. The person providing assistance using this method is also at a risk of allegations of theft or fraud.
Consideration can be given to having an agent appointed under a Power of Attorney or Enduring Power of Attorney on behalf of the donor. To use this option it is advisable to consult a lawyer. The Public Trustee has a separate pamphlet about Enduring Powers of Attorney.
Another alternative for the person prepared to provide assistance is to apply to the Court to be appointed as trustee under the Dependent Adults Act. There are a number of advantages and disadvantages to this approach.
The main advantage is the protection a trustee is able to provide to the dependent adult (that is the designation assigned to someone for whom a trustee has been appointed by the Court). A trustee assumes control of all of the property of the dependent adult and is required to act in that person’s best interest. The dependent adult also has the Court’s protection because the trustee is required to account to the Court periodically.
The disadvantages result from the fact that a Court appointment places limits on a dependent adult's rights and imposes burdensome conditions on a trustee. It is necessary for the trustee to keep very accurate records and to appear every 6 years for a review of the Court Order and every 2 years to file accounts with the Clerk of the Court. These accounts become public record. To obtain trusteeship it is necessary to disclose the medical condition of the disabled party and an interested party may access this. There is also a cost attached to the Court application and there may be a need to hire a lawyer.
Consideration can also be given to appointing a guardian under the Dependent Adults Act where a disabled person may have difficulty making reasonable personal decisions. Under section 11 of the Dependent Adults Act, a guardian may be appointed by the Court to make decisions regarding
- where the dependent adult should live,
- with whom the dependent adult should associate,
- day to day decisions including diet and dress.
A guardian may assume control of some financial transactions through the limited contractual authority granted under sections 58 and 62 of the Dependent Adults Act. For example, a guardian in deciding where a dependent adult should live, may make arrangements for rental payments. In addition, a guardian may purchase necessities for the dependent adult. Limited contractual authority combined with guardianship may be sufficient to meet the needs of the dependent adult.
If the disabled party requires assistance only with the handling of a monthly government cheque, rather than applying to the Court, it is preferable to arrange for trusteeship with the Department issuing the cheque. This type of trusteeship is commonly referred to as informal trusteeship.
There are several advantages to informal trusteeship. There are no Court costs. The informal trustee is accountable but the accountability is to the cheque issuer and not the Court. The privacy of the disabled party is maintained.
The trustee may have to account from time to time for all of the benefits received and expenditures made. These accounting reports may be required at annual intervals. The trustee’s authority to act for a beneficiary ceases with the death of the beneficiary. Funds held by the trustee for the beneficiary at the latter’s death become part of the estate.
Informal trusteeship should be considered, particularly where the estate of the dependent adult is minimal. The Court will not appoint a trustee under the Dependent Adults Act unless the applicant has satisfied the Court that the option of informal trusteeship was considered but was found not to be a viable alternative.
Government of Canada
Informal trustee provisions are available through the Income Security Programs and Veterans Affairs.
Income Security Programs
The Income Security Programs include the following:
- Old Age Security Pension
- Guaranteed Income Supplement
- Spouse's Allowance
- Allowance for the Survivor
- Canada Pension Plan.
If informal trusteeship is necessary, a "Certificate of Incapability" must be completed by the client’s doctor. The person who is prepared to take on this responsibility must complete a form titled "Undertaking to Administer Benefits Under the Old Age Security Act and/or the Canada Pension Plan Act".
The appropriate papers will be mailed to the applicant by phoning 1-800-277-9914. Operators are available to answer any questions that may arise.
The following are Income Security Programs Offices in Alberta that are open on a full time basis
Calgary
Suite 270, Harry Hays Building
220 Fourth Avenue SE
Calgary, Alberta T2G 4X3
|
Edmonton
Main Floor, Canada Place
9700 Jasper Avenue
Edmonton, Alberta T5J 4C1
|
Lethbridge
Provincial Building
200 - 5 Avenue S
Lethbridge, Alberta T1J 4L1 |
Red Deer
2nd Floor
4911 - 51 Street
Red Deer, Alberta T4N 6A1 |
Veterans Affairs Canada
This Department encourages Court appointed trusteeship, particularly when there is a large estate or in the case of family disputes. However, an individual, usually a family member, may request to be an informal trustee/administrator. In that case, the form titled "Undertaking by Administrator for Administration of Account" can be obtained from Veterans Affairs.
Veterans Affairs Canada has two offices in Alberta
Suite 940, Canada Place
9700 Jasper Avenue
Edmonton, Alberta T5J 4C3
780-495-3762 |
Room 104, Sam Livingston Building
510 - 12 Avenue SW
Calgary, Alberta T2R 0X5
403-292-4048 |
A veteran is likely to be entitled to benefits from more than one department which may necessitate separate informal trustee arrangements.
Provincial Government
Assured Income for the Severely Handicapped (AISH)
Informal trustee provisions are found under section 15 of the Assured Income for the Severely Handicapped Act. Under that Act, an informal trustee is referred to as a financial administrator.
Section 15
(1) If a person who is eligible to receive a handicap benefit is
unable to conduct the person's own affairs, the Director may
appoint a financial administrator to administer all or part of that
person's handicap benefit for the purpose of ensuring that it is
expended for the benefit of that person.
(2) A financial administrator appointed under subsection (1) shall,
when required by the Director, make returns showing the amount
of any handicap benefit received, the amount that has been
expended for the benefit of the person who is entitled to receive the
handicap benefit and the balance remaining with the financial
administrator, and shall, if necessary, remit any balance to the
Director.
(3) If the financial administrator appointed under subsection (1) is
an officer or employee of a facility or other place of care in which a
person who receives or is entitled to receive a modified amount of
handicap benefit or a handicap benefit is maintained, the financial
administrator shall pay to that facility or other place of care that
proportion of the modified amount of handicap benefit or handicap
benefit received that is considered by the Director to be a
reasonable sum for the maintenance of that person, but the Director
shall require the financial administrator to make available to the
person entitled to receive the modified amount of handicap benefit
or handicap benefit the amount that has been provided for that
person's personal use.
How To Go About The Paperwork
The form titled Financial Administrator Appointment is available from a Department of Human Resources and Employment office. AISH payments may be redirected after an informal trustee is appointed. For more information, contact the recipient’s caseworker at the nearest Human Resources and Employment District office.