As elders age, their ability to manage their affairs can become challenging. Questions of how to care for them when they no longer have the mental capacity to care for themselves or to make decisions for themselves come to the fore, particularly if the elder has not prepared a Personal Directive (addressing personal and medical matters) or an Enduring Power of Attorney (addressing financial matters). Once an elderly person has been diagnosed as no longer having the mental capacity to make informed decisions, a Personal Directive and/or Enduring Power of Attorney are no longer viable options for assisting with personal, medical and financial matters.
While the process can be daunting, we, as a paralegal firm, navigate the legal complexities in obtaining what are called Guardianship Orders (for personal and medical matters) and Trusteeship Orders (for financial matters) for those individuals taking on the responsibility of caring for an elderly individual. AzPerLegal Services Inc. provides the paralegal services necessary to ensure that the best interests of the elderly are upheld through this process. Navigating the law can be daunting, especially when dealing with the emotional and practical challenges involved..
Understanding Guardianship and Trusteeship
Guardianship and trusteeship are legal mechanisms designed to protect individuals who can no longer form the mental capacity to make decisions regarding their personal care, health, and financial matters due to incapacity.
Guardianship for elderly parents involves the appointment of a guardian to make personal and healthcare decisions on their behalf. These decisions include medical treatments, living arrangements, and daily care.
Trusteeship for elderly parents involves the appointment of a trustee to manage their financial affairs. The trustee ensures that all financial obligations are met, including paying bills, managing investments, and overseeing any property or assets the individual owns.
Both roles are essential in ensuring that the elderly individual’s needs are met and that their assets and liabilities are managed appropriately.
The Guardianship and Trusteeship Process
The Guardianship Process
Guardianship protects individuals who no longer have the mental capacity to make personal decisions regarding their well-being. To be appointed a guardian, you must apply through the court, following a detailed process that includes submitting, among other things, a capacity assessment performed by a medical professional. The court will grant guardianship if it determines that the adult is at risk of harm without intervention. Once appointed, the guardian has legal authority to make decisions on healthcare, living arrangements, social activities, and other personal matters in the least intrusive manner as possible, while keeping records of decisions made for those individuals who request the same.
Steps to Apply for Guardianship
- Capacity Assessment: A doctor or psychologist assesses the adult’s decision-making ability.
- Application to Court: Submit required forms, including a Capacity Assessment Report, and attend a hearing if necessary.
- Court Order: If the court approves, guardianship is granted, detailing the areas where the guardian has decision-making authority.
Guardians must balance their authority with the adult’s independence, ensuring that decisions are made in the adult’s best interests while respecting their wishes and values whenever possible.
The Trusteeship Process
Trusteeship is a separate legal process designed to manage the financial affairs of elderly adults who are no longer mentally capable of handling their finances. This involves applying to the court to become the trustee. A trustee is responsible for managing all financial aspects, such as paying bills, managing investments, filing taxes, and ensuring the adult’s financial well-being.
Steps to Apply for Trusteeship
- Complete Capacity Assessment: A medical professional evaluates the adult’s capacity to manage financial decisions.
- Court Application: Submit a comprehensive application outlining the adult’s financial situation and your suitability as a trustee.
- Court Decision: The court may grant trusteeship, allowing you to handle the adult’s financial matters, such as paying for accommodation, healthcare, and other personal needs.
Trustees must act responsibly, keeping records of all transactions, ensuring the adult’s financial security, and managing assets to the benefit of the adult . Trustees must also protect the adult’s personal information and keep their accounts separate from the trustee’s finances.
Responsibilities and Legal Obligations
Guardians and trustees have distinct yet complementary roles. While guardians handle personal and healthcare decisions, trustees manage finances. Both roles require adherence to Court orders and legal obligations, such as submitting reports and ensuring accountability when required. Guardians and trustees must also balance their authority with the adult’s autonomy, ensuring the least intrusive approach is taken in decision-making.
Timing
Applying for trusteeship or guardianship, or both can be done in two ways. An application to the Court with a Court hearing or by way of desk application, which means submitting the necessary documentation to the Public Trustee’s Office, who will review the documentation to ensure completeness and procedural correctness, and will then submit the documentation to the Court for approval. If time is of the essence, the first option is more desirable as desk applications can take anywhere up to six to eight months. In either scenario, AzPerLegal Services offers the paralegal services necessary to accomplish the task on your behalf.
Challenges of Managing Guardianship and Trusteeship for Elderly Parents
The decision to pursue guardianship or trusteeship can be emotionally draining and stressful. Families or supportive individuals often face difficult questions, such as determining the right time to seek these legal tools, understanding the responsibilities involved, and ensuring that the elder’s best interests are always prioritized. The legal process can also be complex, requiring detailed documentation, court applications, and ongoing management.
Key challenges include:
- Timing: It can be difficult to recognize the moment when a parent is no longer capable of managing their affairs. Balancing their autonomy with the need for legal protection is often a sensitive issue.
- Family disagreements: Different family members may have conflicting views on how to care for an elderly parent, which can lead to disputes and delays in making crucial decisions.
- Court processes: The legal formalities involved in obtaining guardianship or trusteeship require significant time and effort, including filing applications, providing medical evidence, and attending court hearings.
In these difficult situations with extenuating circumstances, working with a paralegal can help answer some of these questions.
Paralegal Services in Calgary from AzPerLegal
At AzPerLegal Services, we specialize in providing compassionate and professional paralegal services in Calgary, helping families navigate these sensitive issues with confidence and care.
If you are considering guardianship or trusteeship for elderly parents or an elderly friend or need assistance with an ongoing matter, contact AzPerLegal Services today. Our experienced paralegals are here to help you every step of the way.
Blog posts from AzPerLegal Services Inc. are for general information only. The content should not be considered legal advice. If you are in need of professional legal advice, please reach out to our Paralegal Services team.
