Protect Your Elderly Parents. Lynne Butler
accident and suffers a brain injury that incapacitates him. The court application process would be identical, even though the reason for the application was very different.
The focus of this book is not about rescuing adults who have been abused or neglected. All jurisdictions across Canada have laws in place that deal with protection of adults of all ages who are subject to physical abuse, sexual abuse, mental cruelty, or neglect in the place that they live. The laws and procedures discussed in this book are separate from those laws. If you wish to assist or rescue an elderly person whom you believe to be in distress of any kind, you are encouraged to contact your local police, social services agency, or elder abuse agency.
Once you have been successful in asking the court to appoint you as guardian and/or trustee, you may refer to this book again for information about what is involved in court reviews and passing of accounts. The book also covers what happens when the dependent adult dies or the guardian and/or trustee dies.
1
The Difference Between a Guardian and Trustee
1. Understanding the Difference between a Guardian and Trustee
If you are reading this book, you are most likely in the following situation:
• It has become clear to you that an elderly parent needs assistance of some kind, whether it is with personal- and/or health-care matters, financial matters, or both personal and financial matters.
• None of the alternatives such as home care, power of attorney, or Health Care Directives discussed in Chapter 3 are suitable for the elderly relative in question.
• You have decided that the court system, though it is a last resort, is the best choice right now for the elderly relative in question.
This chapter will help you clarify the difference between a guardian and trustee. A person may apply to the court to be appointed as a guardian or a trustee, or both. This book will consider guardianship and trusteeship to be two different roles, even though one person can, and often does, do both jobs at once. If you are applying for both, you only have to make one application. Chapter 2 will help you understand which role is suitable for your elderly relative.
The main difference between guardianship and trusteeship lies in the type of decisions that must be made by the person who is appointed. The type of decisions that need to be made will depend on the unique situation and needs of the person who is being protected. For example, some elderly adults can live on their own reasonably well but cannot manage their finances, while others are just the opposite. The elderly person being protected will be referred to as a “dependent adult” in this book because he or she is an adult who is now becoming dependent on others for assistance.
In provincial and territorial statutes, the person who is in need of assistance is referred to by different names. In order to make it easier for you to read and understand your own local laws, use Table 1 to determine what such a person is properly called in your province or territory.
Table 1: Name of Person in Need of Assistance by Province and Territory
You will note that in most cases, the terms used to describe an adult who needs assistance with decision making refer to the concept of being incapable or incapacitated. As more and more parts of Canada modernize their laws dealing with assisting incapacitated adults, the language used in those laws also becomes more up-to-date. By and large, Canada has done away with language that referred to incapacitated adults in somewhat derogatory terms, though one or two provinces have yet to reform their laws. The modern-day laws recognize that adults who are losing or have lost their capacity should be treated with respect and dignity.
Guardianship and trusteeship should not be undertaken lightly. Keep in mind that Canada’s Charter of Rights ensures each person the right to life, liberty, and security of the person. You must understand that by asking a court to appoint you as someone else’s guardian or trustee, you are asking it to take away another person’s right to run his or her own affairs. For this reason, you are encouraged to ask the court only for the powers you need to assist the dependent adult, and no more. Asking for more is at best interference and at worst, an infringement on another person’s rights.
The general attitude that you should take when considering guardianship and trusteeship is that dependent adults should be encouraged to remain as independent as possible for as long as safely possible. Only the help that is requested or needed by a dependent adult should be given. Taking away an individual’s independence can be an indignity to the person that is in some cases avoidable. Some elderly people feel angry and violated if unwanted assistance is imposed on them by well-intentioned family members who have too heavy a hand. Guardians and trustees should tread as lightly as possible while giving the assistance that is needed.
Guardianship and trusteeship laws were created for one purpose only, which is to assist a dependent adult. All of the provincial and territorial statutes give the courts the discretion to appoint a guardian and trustee if the court believes it to be beneficial to the dependent adult.
Provincial and territorial legislatures are also doing away with laws that allow a guardian or trustee to have absolute and full control of a person and his or her health care and finances once incapacity has been shown. The more forward-thinking provinces and territories recognize that individuals suffering from loss of capacity do not necessarily need every single area of responsibility taken from them. This is where the difference between guardianship and trusteeship comes in. It is simply a matter of time until all areas of Canada are fully modernized in this way.
1.1 Guardianship
A guardian deals with decisions of a personal nature. This includes health-related decisions such as whether the dependent adult should have a particular surgical operation, take specific medication, or see a doctor. It usually also extends to other personal decisions such as where the dependent adult will live and even small, day-to-day decisions such as what the dependent adult will eat and what he or she will wear. The guardian is the person who would make those decisions on behalf of the dependent adult. As each individual dependent adult is different, so will the decisions needed to be made by each guardian. The general idea is to assist the dependent adult where necessary while allowing him or her to live as independently as possible.
A guardian does not make decisions relating to money, bills, investments, finances, or property. A guardian has no authority to sell or rent a dependent adult’s house, pay his or her bills, receive an inheritance on his or her behalf, or invest the dependent person’s savings.
The Guardianship and Trusteeship Act of the Northwest Territories, though it only applies to Northwest Territories and Nunavut, contains valuable guidance for anyone who is going to act as a guardian, regardless of where they live. Similar guidelines are expressed in the laws of other parts of Canada as well.
The following is a paraphrased summary of what the Northwest Territories’ act says. In deciding what decision is in the best interests of the dependent adult, the guardian shall take the following into consideration:
• If the guardian knows of a wish or instruction that was expressed by the dependent adult when the dependent adult was still mentally capable, the guardian shall make decisions in accordance with that wish or instruction.
• If the dependent adult’s current wishes can be determined, then the guardian shall make decisions in accordance with the dependent adult’s current wishes.
• A guardian shall encourage the dependent adult to participate, to the best of his or her ability, in the guardian’s decisions.
• A guardian shall foster regular personal contact between the dependent adult and his or her supportive