Understanding Guardianship Orders: When and How to Seek Modifications

When an individual is over the age of eighteen and lacks the mental capacity to make decisions in their own best interest, they are considered dependent adults. A Guardianship Order is a legal Court Order granting an individual the legal right to make personal and medical decisions on behalf of the dependent adult. If a Guardianship Order is in place, the dependent adult is defined as a represented adult (the Represented Adult).

Guardianship Orders, over time, may need to be revised or updated, depending on either the circumstances of the Represented Adult or the appointed Guardian under the Guardianship Order. Understanding when and how to, what is called “review” a Guardianship Order, ensures the Represented Adult continues to receive the care and support he/she needs to survive and thrive.

This article explores common situations giving rise to the need to review a Guardianship Order, the legal process involved, and how paralegal services in Calgary can assist you to successfully navigate the process.

Common Reasons for Varying a Guardianship Order

Some situations giving rise to the requirement to undertake a review of a Guardianship Order include changes in the Represented Adult’s mental health, changes to the Guardian’s ability to maintain the role of Guardian under the Guardianship Order, changing and financial and legal circumstances, whether for the Guardian or Represented Adult, as well as family dynamics and relationships of the Guardian and/or Represented Adult.

Changes in the Represented Adult’s Health or Mental Capacity

Represented Adults may experience significant improvements in their mental capacity to make decisions over time, such that a Guardianship Order may not be required. Rather, when a Represented Adult makes significant improvements, it may well be that a Co-Decision Making Order is more appropriate. Conversely, depending on the terms of the original Guardianship Order, if the condition of the Represented Adult is declining, it may well be necessary for the Guardian to apply to the Court for a review of the Guardianship to grant the Guardian extended or more comprehensive legal authority. For example, an original Guardianship Order may only grant the Guardian limited authority; however, over time, with the Represented Adult’s decline in mental and/or physical health, it may be necessary for a review of the Guardianship Order to grant the Guardian more authority to make more comprehensive decisions on behalf of the Represented Adult.

Changes in a Guardian’s Life Circumstances

Guardianship can be very demanding and time-consuming. If a Guardian faces their own personal health issues, relocates, or faces other life changes preventing them from fulfilling their responsibilities under the Guardianship Order to the best of their abilities and to the standard in which they are held, a review of the Guardianship Order to replace the Guardian, or add a Joint Guardian, depending on the circumstances, is appropriate in the circumstances.

Family Dynamics and Relationships

Family dynamics, such as new relationships, divorces, or disputes, can impact the Represented Adult and the Guardian. It may well be that a family member, or alternate individual (for example, caregiver), as the case may be, is better suited to act as guardian. In a situation such as this, a review of the Guardianship Order to remove the existing Guardian may be in order. In circumstances where the original Guardianship Order included an Alternate Guardian, the review may be as simple as discharging the original Guardian and having the Alternate Guardian take over. In circumstances where no Alternate Guardian was appointed under the original Guardianship Order, a review is required to discharge the original Guardian and to appoint a new Guardian meeting the legal threshold for such an appointment.

Financial or Legal Implications

Significant financial changes affecting the Guardian or Represented Adult may also necessitate a review. It is important to note that if the financial resources of a Represented Adult are not sufficient to satisfy the requirements of the Represented Adult, the Guardian may become responsible for providing financial assistance to ensure those requirements are paid. If a Guardian is unable to provide the required financial assistance, a review of the Guardianship Order may be in order to appoint an individual as guardian with the financial resources and who is financially willing to ensure the Represented Adult’s needs are met.

In the event the Guardian encounters legal difficulties in their own personal circumstances, the ability of the Guardian may be called into question in maintaining an even hand with the Represented Adult. In circumstances such as this, it is imperative that a review of the Guardianship Order be undertaken to remove the Guardian and appoint a new Guardian to ensure the Represented Adult receives the best care and support he/she needs.

The Legal Process for Modifying Guardianship Orders in Calgary

If you believe a review of a Guardianship Order is required, set out below are the general steps for undertaking this process:

1. Assessment: Start by assessing whether a review is genuinely in the best interests of the Represented Adult. In the event of an improvement or decline in the Represented Adult’s health, it is imperative that you request a Form 4 – Mental Capacity Assessment be performed on the Represented Adult by a qualified medical professional, ideally a medical professional with intimate medical knowledge of the Represented Adult. In the event of the Guardian, have a frank discussion with the Guardian, setting out your concerns and suggestions. It is better to obtain the consent of the Guardian to step down, however, this may not be the case. In the latter circumstance, notify the Guardian of your intent to commence the process to review the Guardianship Order.
2. Preparing the Required Court Documents: Guardians or family members can request a review of the Guardianship Order by filing an Application with the Court. The Application provides the reasons for the review, with supporting documentation/evidence.
3. Court Review: The Court will undertake a review, evaluate supporting documents/evidence with a view to considering the input from all parties involved, including the current guardian and family members.
4. Hearing and Decision: Where required and depending upon the urgency of the review, a hearing may be held in person before a Justice of the Court. Based on the information and arguments presented, the Court will make a determination whether to approve, deny, or alter the proposed review. Alternatively, if there is no urgency to the review, the documents can be submitted by way of desk application for eventual granting by the Court.

Working With a Paralegal for Guardianship Modifications

Navigating the legal aspects of guardianship can be complex and stressful. Paralegal services in Calgary can provide:

• Expert Documentation Preparation: Paralegals can assist in preparing appropriate Court documents, organizing evidence, and ensuring all legal requirements are met.
• Cost-Effective Guidance: Paralegals often provide a more affordable solution for families compared to full legal representation, especially for non-contentious guardianship reviews.
• Support and Communication: With experience in the guardianship process, a paralegal can guide you through each step, answering your questions and preparing you for court proceedings, if needed.

Important Considerations for the Represented Adult, Guardians and Family Members

Reviewing a Guardianship Order will result in a significant change in the Represented Adult’s life and accordingly, one must seriously consider the potential implications arising from a review:

• Emotional Impact: A change in guardianship can be emotionally challenging for both the Guardian and the Represented Adult. Ensuring open communication and focusing on the best interests of the Represented Adult can help to alleviate the emotional stress arising from such a significant change in the Represented Adult’s life.
• Financial Adjustments: A Review of a Guardianship Order involves financial cost. Ensuring funds are available to effect a Review is essential.
• Alternative Options: Depending on the reasons necessitating a review of a Guardianship Order, you may wish to explore options for a review. AzPerLegal Services will assist you in understanding these alternatives and deciding which option best fits the needs of the Represented Adult.

How AzPerLegal Paralegal Services in Calgary Can Assist

At AzPerLegal Services, we understand the sensitive nature of guardianship. We are here to assist you through the process of guardianship review, with professionalism, empathy and understanding. We provide support every step of the way, from preparing the initial paperwork to explaining legal processes so you can confidently make informed decisions.

If you are faced with the requirement to review a guardianship order or are simply considering one, please consider our expert paralegal services in Calgary for compassionate guidance tailored to your unique situation.

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, for referrals to a lawyer.