Notice to Readers
- Application for Trusteeship
- Choosing a Lawyer
- Come Prepared to Your First Meeting With the Lawyer
- Medical Report
- Alternatives
- Maintenance Under the Dependent Adults Act
- Charitable Donations
- Special Authority
- Be Candid With Your Lawyer
- Costs
- Use of Forms
Forms/Documents
Notice to Readers
This web page was prepared as a public service to Albertans by the Office of the Public Trustee with the assistance of the Office of the Public Guardian and the Court Services Division of Alberta Justice.
This web page is intended to give information about trusteeship under the Dependent Adults Act. It is not intended to give legal advice for which a lawyer should be retained. The Dependent Adults Act and its Regulations should also be consulted. The law and its interpretation by the Courts frequently change.
The Public Trustee does not warrant the outcome or result of using the information in this web page.
1. Application for Trusteeship
An application may be made by any interested person to appoint
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an adult Alberta resident,
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to act as trustee for someone unable to manage finances.
If you do not already have a lawyer, your best source of referral may be an acquaintance who can make a recommendation. Often members of support groups for the disabled are able to make recommendations.
The Alberta Law Society sponsors the Lawyer Referral Service program. In using that service, you are given the name of three local lawyers who have relevant experience in dependent adult matters. You can see one, two or all of the lawyers. If you use the program, your initial consultation with the lawyer is free of charge for the first half hour. The telephone number for Lawyer Referral Service is 1-800-661-1095.
3. Come Prepared to Your First Meeting With the
Lawyer
The
Information Regarding Proposed Dependent Adult form, if completed, will provide a lawyer with most of the information required to make a trusteeship application. Completing this document and being able to respond to the questions arising from it can reduce the time and cost in obtaining a Trusteeship Order.
An initial application under the
Dependent Adults Act must be accompanied with a medical report in the prescribed form. A blank medical report titled
Report of a Physician or Psychologist can be found in the forms section. It would save your lawyer time if you had the report completed at the initial visit.
Discuss with your lawyer some possible alternatives to trusteeship under the Dependent Adults Act. These include:
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informal trusteeship - where there are no estate assets to administer but the disabled individual requires assistance with the management of cheques issued by the government [e.g. Assured Income for the Severely Handicapped (AISH), Income Supports and Benefits, Old Age Security (OAS), Canada Pension Plan (CPP), Veterans Affairs benefits], informal trusteeship may be arranged with the Department issuing the benefit cheque.
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Enduring Power of Attorney - if the disabled person is mentally competent to give instructions, the lawyer may prepare an Enduring Power of Attorney which has the effect of appointing an agent to manage financial affairs during the period of incapacity.
6. Maintenance Under the Dependent Adults Act
Section 46(2) of the Dependent Adults Act allows a trustee to exercise authority for maintenance, education, benefit, and advancement of a spouse, a minor child, a disabled child, or with the consent of the Court, any other person. If you are the applicant for trusteeship and expect maintenance from the estate, alert your lawyer to this for advice and possible inclusion in the Court Order pre-authorizing maintenance. Similarly, you can make provision for regular maintenance to be made to any individual. This is an area where caution must be exercised. If the amount of maintenance is fixed in the Court Order, it may preclude a discretionary payment of maintenance if an unexpected event should occur.
7. Charitable Donations
A trustee, other than the Public Trustee, cannot 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, alert your lawyer to this. It may be possible for the Court to pre-authorize charitable donations or gifting.
8. Special Authority
If it is necessary to dispose of the proposed dependent adult's real estate or personal property, specific Court approval will be required.
If the proposed dependent adult is given a regular allowance for personal spending, you may wish to have the Court specifically authorize such an expenditure.
Trustees are often placed in a position where special circumstances prevail over prudent financial management. For instance, a dependent adult with no prospect of being discharged from an institution may cling to the hope of returning to a normal life at home with all its amenities. It may be necessary to make provision in a Court Order allowing a trustee to delay a sale of assets in such circumstances.
If you own property jointly with the dependent adult, let your lawyer know so that the Court can direct how to deal with the property.
9. Be Candid With Your Lawyer
Disclose all relevant information to your lawyer. Let your lawyer know if any opposition is expected to your application. Let your lawyer know if you owe the dependent adult any money. Alert your lawyer of any special arrangements you may have with the dependent adult, for instance, if you are living rent-free in accommodation owned by the proposed dependent adult.
10. Costs
Discuss legal fees with your lawyer to prevent future misunderstandings. Your lawyer may be able to advise you of steps you could take to reduce fees. For instance, if you were to serve the notices required under the Dependent Adults Act, this could result in savings.
The costs of making an application under the Dependent Adults Act can be ordered to be paid from the estate, the applicant, or the Crown if it would be a hardship for the estate.
11. Use of Forms
Please note that the forms included in this package are for use by lawyers making application to have individuals appointed as trustees. If you wish the Public Trustee to be appointed as the trustee, different forms must be completed and those forms are available from the Office of the Public Trustee.