70 Certificate
of incapacity
71 Notification
of issue of certificate of incapacity
72 Resolution
of conflicts
73 Review
of certificate of incapacity
74 Termination
of certificate of incapacity
75 Notice
of termination of certificate of incapacity
76 Termination
of trusteeship of Public Trustee
77 Duration
of certificate of incapacity
Division 2
Rights of Persons in Respect of Whom
a Certificate of Incapacity is Issued
78 Written
statement of certificate of incapacity
Division 3
Appeal Panels
79 Appeal
panels
80 Quorum
and decisions of appeal panels
81 Persons
ineligible for appeal panel
82 Duties
of appeal panel
Division 4
Appeals from Certificate of
Incapacity to Appeal Panel
83 Appeal
for cancellation of certificate of incapacity
84 Notice
of appeal
85 Proceedings
of appeal panel
86 Decision
of appeal panel
Part 5
Appeal, Regulations
87 Appeal
to Court
88 Appeal
to Court of Appeal
89 Regulations
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Definitions
1 In this Act,
(a) “agent”
means an agent as defined in the Personal
Directives Act;
(b) “appeal
panel” means an appeal panel established pursuant to section 79;
(c) “certificate
of incapacity” means a certificate of incapacity issued pursuant to section 70;
(d) “Court”
means the Court of Queen’s Bench;
(e) “dependent
adult” means a person in respect of whom
(i) a guardianship order is in effect,
(ii) a trusteeship order is in effect, or
(iii) both a guardianship order and a trusteeship order are in effect;
(f) “enduring
power of attorney” means an enduring power of attorney as defined in the Powers of Attorney Act;
(g) “facility”
means a place designated in the regulations as a facility;
(h) “guardian”
means the person named as a guardian in a guardianship order or a person who
becomes a guardian by virtue of the operation of this Act;
(i) “guardianship
order” means an order of the Court appointing a person as a guardian pursuant
to section 7 or as an alternate guardian pursuant to section 25;
(j) “health
care” includes
(i) any examination, diagnosis, procedure or treatment undertaken to
prevent any disease or ailment,
(ii) any procedure undertaken for the purpose of preventing pregnancy,
(iii) any procedure undertaken for the purpose of an examination or a
diagnosis,
(iv) any medical, surgical, obstetrical or dental treatment, and
(v) anything done that is ancillary to any procedure, treatment,
examination or diagnosis;
(k) “institution”
means
(i) a facility,
(ii) a nursing home,
(iii) an approved hospital under the Hospitals Act,
(iv) lodge accommodation as defined in the Alberta Housing Act,
(v) a place of care, licensed under the Social Care Facilities Licensing Act, for persons who are aged or
infirm or who require special care,
(vi) a hostel or other establishment, licensed under the Social Care Facilities Licensing Act,
operated to provide accommodation and maintenance for unemployed or indigent
persons,
(vii) a jail or penitentiary or correctional institution as defined in
the Corrections Act, or
(viii) any other establishment or class of establishment designated in
the regulations as an institution;
(l) “interested
person” means
(i) the Public Trustee,
(ii) the Public Guardian, or
(iii) any other adult person who is concerned for the welfare of the
person in respect of whom a guardianship order or trusteeship order is sought
or has been obtained;
(m) “Minister”
means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this
Act;
(n) “nearest
relative” means with respect to any person, the relative of that person first
listed in the following subclauses, relatives of the whole blood being
preferred to relatives of the same description of the half‑blood and the
elder or eldest of 2 or more relatives described in any subclause being
preferred to the other of those relatives regardless of sex:
(i) spouse or adult interdependent partner;
(ii) son or daughter;
(iii) father or mother;
(iv) brother or sister;
(v) grandfather or grandmother;
(vi) grandson or granddaughter;
(vii) uncle or aunt;
(viii) nephew or niece;
(o) “personal
directive” means a personal directive as defined in the Personal Directives Act;
(p) “physician”
means a person registered as a medical practitioner under the Medical Profession Act and, with respect
to a physician who practises medicine outside Alberta, means a person who is
licensed or otherwise authorized to practise medicine in the jurisdiction where
that person practises;
(q) “place
of care” means a place designated in the regulations as a place of care;
(r) “psychologist”
means a person who is a regulated member of the College of Alberta
Psychologists under the Health
Professions Act and, with respect to a psychologist who practises
psychology outside Alberta, means a person who is licensed or otherwise
authorized to practise psychology in the jurisdiction where that person
practises;
(s) “Public
Guardian” means the person appointed as the Public Guardian pursuant to section
20;
(t) “Public
Trustee” means the person appointed as the Public Trustee under the Public Trustee Act;
(u) “Surrogate
Rules” means the Surrogate Rules
under the Court of Queen’s Bench Act;
(v) “trustee”
means the person named as trustee in a trusteeship order or a person who
becomes a trustee by virtue of the operation of this Act;
(w) “trusteeship order” means an order of the
Court appointing a person as trustee of the estate of a person pursuant to
section 35 or as an alternate trustee of the estate of a person pursuant to
section 51.
RSA 2000 cD‑11
s1;RSA 2000 cH‑7 s153;
RSA 2000 c16(Supp) s42;2002 cA‑4.5 s30
Part 1
Guardianship
Division 1
Application for Guardianship Order
Application for
guardianship order
2(1) Subject to this section and section 3, any
interested person may apply to the Court for an order appointing a guardian in
respect of an adult person.
(2) No
application shall be made to the Court under subsection (1) unless it is
accompanied with a report of a physician or a psychologist in the prescribed
form.
(3) The interested person making an application
under subsection (1) shall, at the same time the application is made, file with
the Court the written consent of the person proposed as guardian to the effect
that the person is willing to act as the guardian of the person in respect of
whom the application is made.
RSA 1980 cD‑32
s2;RSA 1980 c6(Supp) s3;1985 c21 s3
Persons entitled to copy
of application
3(1) An application for an order appointing a guardian
may be made in the form prescribed in the regulations and must be made in the
judicial district in which the person in respect of whom the application is
made is ordinarily resident unless the Court considers it appropriate in the
circumstances of the case for the application to be made in any other judicial
district.
(2) The
interested person making the application must serve a copy of the application,
the report referred to in section 2 and either a notice of motion, at least 10
days before the date the application is to be heard, or a notice of objection
in the prescribed form, on
(a) the
person in respect of whom the application is made,
(b) the
person living in Canada who is
(i) the nearest relative of the person in respect of whom the application
is made, or
(ii) if the nearest relative referred to in subclause (i) is the
applicant, the next nearest relative of the person in respect of whom the
application is made,
(c) the
person proposed as the guardian of the person in respect of whom the
application is made if the person is not the applicant or the nearest relative
served pursuant to clause (b),
(d) if
the person in respect of whom the application is made is a resident of an
institution, the person in charge of the institution,
(e) the
Public Guardian, if the Public Guardian is not the applicant or the person
served pursuant to clause (c),
(f) if
the person in respect of whom the application is made has made a personal
directive, the agent, if any, designated in the personal directive if the agent
is not the applicant or a person otherwise served pursuant to this subsection,
(g) any
attorney under an enduring power of attorney given by the person in respect of
whom the application is made if the attorney is not the applicant or a person
served pursuant to this subsection,
(h) any
trustee of the person in respect of whom the application is made if the trustee
is not the applicant or a person served pursuant to this subsection, and
(i) any
other person that the Court may direct.
(3) A
person who is served with a notice of objection form under subsection (2) may,
within 10 days after being served, file a notice of objection with the clerk of
the Court.
(4) Any
person, other than a person served under subsection (2), may file a notice of
objection within 10 days after service on any person under subsection (2).
(5) If
no notice of objection is filed within 10 days after service on all the persons
required to be served under subsection (2), the Court may consider the
application in the absence of the applicant and all the persons referred to in
subsection (2).
(6) If
a notice of objection is filed or if the Court considers that a hearing is
necessary, the applicant must, at least 10 days before the date the application
is to be heard, serve a notice of motion on the persons described in subsection
(2) and any person who filed a notice of objection under this section.
(7) No
order for service ex juris is necessary for service of a copy of an application
on any of the persons referred to in subsection (2) in a province or territory
of Canada other than Alberta or in the United States of America, but service
must be effected at least
(a) 30
days before the date the application is to be heard in the case of a person in
a province or territory other than Alberta, or
(b) 45
days before the date the application is to be heard in the case of a person in
the United States of America.
(8) The
Court may, if it considers it appropriate to do so,
(a) shorten
the time for service on all or any of the persons referred to in subsection
(2),
(b) direct
the manner of service, or approve the manner of service that has been effected,
on all or any of the persons referred to in subsection (2),
(c) dispense
with the requirement for service on all or any of the persons referred to in
subsection (2), except the Public Guardian and, subject to clause (d), the
person in respect of whom the application is made, or
(d) dispense
with the requirement for service on the person in respect of whom the
application is made if
(i) the Public Guardian consents, and
(ii) the Court is satisfied that it is in the
best interests of that person to do so.
RSA 1980 cD‑32
s3;RSA 1980 c6(Supp) ss5,30;
1985 c21 s5;1991 cP‑13.5 s17;1996 cP‑4.03 s35;
1996 c13 s2
Application without report
4 Notwithstanding sections 2(2) and 3(2)
and (3), if the Court is satisfied that
(a) there
is immediate danger of death or serious harm to the physical or mental health
of the adult person and it is necessary for someone to make decisions to prevent
that danger,
(b) it
is impracticable or not possible to obtain a report referred to in section 2
before the danger referred to in clause (a) is likely to occur, and
(c) it
is impracticable or not possible for a person to obtain authorization under another
enactment to make the decisions described in clause (a),
the Court may dispense with the requirement for the report
referred to in section 2.
1996 c13 s3
Inquiry by Court and
report
5(1) When considering an application for an order
appointing a guardian, the Court shall inquire as to whether
(a) the
person in respect of whom the application is made has made a personal
directive,
(b) the
person in respect of whom the application is made would substantially benefit
by the appointment of a guardian, and
(c) it
is in the best interests of the person in respect of whom the application is
made for a guardian to be appointed for the person.
(2) If
(a) the
Court has any doubt as to whether a guardian should be appointed, or
(b) a
guardianship order is being reviewed by the Court,
the Court may appoint a person to prepare a report on the
person named in the application with respect to any or all of that person’s
physical, mental, social, vocational, residential, educational or other needs
both present and future and generally that person’s ability to care for himself
or herself and to make reasonable judgments with respect to matters relating to
his or her person.
RSA 1980 cD‑32
s4;1985 c21 s6;1996 cP‑4.03 s35;1996 c13 s4
Persons at hearing
6 If a hearing is held in respect of an
application for an order appointing a guardian or on a review of a guardianship
order
(a) any
person served pursuant to section 3(2) or (6), and
(b) any
other person who wishes to make representations and whom the Court agrees to
hear,
may appear and make representations.
RSA 1980 cD‑32
s5;1996 c13 s5
Division 2
Guardianship Order and Its Effect
Appointment of guardian
7(1) When the Court is satisfied that a person named
in an application for an order appointing a guardian is
(a) an
adult, and
(b) repeatedly
or continuously unable
(i) to care for himself or herself, and
(ii) to make reasonable judgments in respect of matters relating to
his or her person
the Court may make an
order appointing a guardian.
(2) The
Court shall not make an order under subsection (1) unless it is satisfied that
the order would
(a) be
in the best interests of, and
(b) result
in substantial benefit to
the person in respect
of whom the application is made.
(3) If the Court makes an order under this section,
the applicant shall serve a copy of the order on the persons who are required
to be served with an application under section 3(2).
RSA 1980 cD‑32
s6;RSA 1980 c6(Supp) s6;1985 c21 s7
Persons eligible as
guardian
8(1) The Court may appoint as a guardian of a
dependent adult, any adult person who consents to act as guardian and in
respect of whom the Court is satisfied that
(a) the
person will act in the best interests of the dependent adult,
(b) the
person will not be in a position where the person’s interests will conflict
with the dependent adult’s interests, and
(c) the
person is a suitable person and is able to act as the guardian of the dependent
adult.
(2) Notwithstanding
subsection (1)(b), a person shall not be considered to be in a position where
the person’s interests will conflict with the dependent adult’s interests by
reason only of the fact that the person is a potential beneficiary or a
relative of the dependent adult.
(3) The Court may require the person proposed as
guardian to attend and answer questions to determine whether the person meets
the requirements of subsection (1).
RSA 1980 cD‑32
s7;RSA 1980 c6(Supp) s7;1985 c21 s8;
1999 c32 s4
Review of guardianship
order
9(1) On making or reviewing a guardianship order
granted pursuant to an application under section 3, the Court shall specify
(a) the
time within which the order must be reviewed by the Court, which shall not be
later than 6 years after the date of the order or the date of the review of the
order, as the case may be,
(b) the
person required to apply to the Court for the review, and
(c) any
requirement to be complied with by the guardian or any other person with
respect to a review of the circumstances of the dependent adult.
(2) On
granting an order pursuant to an application considered under section 4, the
Court shall specify the time, not later than 90 days after the date of the
order, within which the order must be reviewed by the Court.
(3) On
a review of an order granted pursuant to an application considered under
section 4, the Court may
(a) cancel
the order,
(b) extend
the order once for up to a further 30 days after which time the order lapses,
or
(c) consider it as an application under section
3 if the requirements of section 3 have been met.
RSA 1980 cD‑32
s8;RSA 1980 c6(Supp) s8;
1985 c21 s9;1996 c13 s6
Order appointing
guardian
10(1) When the Court makes an order appointing a
guardian, the Court shall grant to the guardian only the powers and authority
referred to in subsection (3) that are necessary for the guardian to make or
assist in making reasonable judgments in respect of matters relating to the
person of the dependent adult.
(2) Notwithstanding
subsection (1), if the Court is aware that the person has a personal directive,
the Court may not grant to a guardian any powers and authorities to be
exercised by an agent under the personal directive unless the Court terminates
the agent’s authority relative to those powers and authorities.
(3) In
making an order appointing a guardian, the Court shall specify whether all or
any one or more of the following matters relating to the person of the
dependent adult are to be subject to the power and authority of the guardian:
(a) to
decide where the dependent adult is to live, whether permanently or temporarily;
(b) to
decide with whom the dependent adult is to live and with whom the dependent
adult is to consort;
(c) to
decide whether the dependent adult should engage in social activities and, if
so, the nature and extent of them and related matters;
(d) to
decide whether the dependent adult should work and, if so, the nature or type
of work, for whom the dependent adult is to work and related matters;
(e) to
decide whether the dependent adult should participate in any educational,
vocational or other training and, if so, the nature and extent of it and
related matters;
(f) to
decide whether the dependent adult should apply for any licence, permit,
approval or other consent or authorization required by law;
(g) to
commence, compromise or settle any legal proceeding that does not relate to the
estate of the dependent adult and to compromise or settle any proceeding taken
against the dependent adult that does not relate to the dependent adult’s
estate;
(h) to
consent to any health care that is in the best interests of the dependent
adult;
(i) to
make normal day to day decisions on behalf of the dependent adult including the
diet and dress of the dependent adult;
(j) any
other matters specified by the Court and required by the guardian to protect the
best interests of the dependent adult.
(4) In
making an order appointing a guardian, the Court may
(a) make
its order subject to any conditions or restrictions it considers necessary, or
(b) restrict,
modify, change or add to any of the matters referred to in subsection (2).
(5) Any decision made, action taken, consent given
or thing done by a guardian with regard to any matter in respect of which the
guardian is appointed guardian is deemed for all purposes to have been decided,
taken, given or done by the dependent adult as though the dependent adult were
an adult capable of giving consent.
RSA 1980 cD‑32
s10;RSA 1980 c6(Supp) s9;1985 c21 s11;
1996 cP‑4.03 s35
Compulsory care order
11(1) Where an order has been made under section 7,
the Court may, on application of any interested person and subject to
subsection (2), make a compulsory care order in accordance with this section.
(2) An
application for a compulsory care order shall be served on the persons who are
required to be served with an application under section 3(2), except that
service of the application on the dependent adult and on the Public Guardian
may not be dispensed with.
(3) A
court shall only make a compulsory care order if
(a) it
has considered a medical, psychological and social assessment that shows the
extent to which the dependent adult presents a danger to himself or herself or
others,
(b) it
is satisfied that it is in the best interests of the dependent adult that the
dependent adult be confined in a place of care,
(c) it
is satisfied that the dependent adult is in a condition that presents a danger
to the dependent adult or others, and
(d) it is satisfied that a compulsory care order
is a proper means of ensuring the protection and treatment of the dependent
adult.
RSA 1980 c6(Supp) s10
Copies of order
12 Where the Court makes a compulsory care order
under section 11(1), the applicant shall provide to the persons who were served
with the application under section 11(2) a copy of the order and a written
statement in the prescribed form setting out
(a) that
the compulsory care order may be reviewed by the Court pursuant to section 14,
(b) that
the dependent adult may be represented by legal counsel at any hearing, and
(c) the address and telephone number of the
office of the Legal Aid Society of Alberta that is nearest to the Court.
RSA 1980 c6(Supp) s10
Authority of order
13(1) A compulsory care order made under section
11(1) is sufficient authority for any person to
(a) confine
the dependent adult in a place of care for the period stated in the order,
which shall not exceed a period of 3 years,
(b) apprehend
and convey the dependent adult to a place of care and to detain the dependent
adult while the dependent adult is being conveyed until the dependent adult
arrives at the place of care, and
(c) transfer
the dependent adult to another place of care and to detain the dependent adult
while the dependent adult is being transferred.
(2) A
compulsory care order remains in effect until it expires or is terminated or cancelled
or until the dependent adult dies, whichever first occurs.
(3) During
the term of a compulsory care order, the person in charge of the place of care
may, if the person is satisfied that the security of the dependent adult will
be assured, grant the dependent adult a leave of absence from the place of care
for medical, rehabilitative or humanitarian reasons for a time, and on any
terms and conditions, that the person in charge of the place of care may
prescribe.
(4) If
a dependent adult who is the subject of a compulsory care order
(a) leaves
a place of care and a leave of absence has not been granted, or
(b) leaves
a place of care pursuant to a leave of absence but fails to return within the
prescribed time,
the person in charge
of the place of care may order any peace officer to return the dependent adult
to the place of care.
(5) On receipt of an order made under subsection
(4), a peace officer may apprehend the dependent adult without a warrant and
return the dependent adult directly to the place of care.
RSA 1980 c6(Supp) s10
Application for review
of order
14(1) Where, in the opinion of the dependent adult,
the guardian or any other interested person, it is no longer in the best
interests of the dependent adult who is the subject of a compulsory care order
that the dependent adult be confined in a place of care, the dependent adult,
the guardian or other interested person may apply to the Court for a review of
the compulsory care order, in which case sections 23 and 24 apply to the review
of the order, with all necessary modifications.
(2) Where
an appeal panel that reviews a compulsory care order under section 82 directs
the Public Guardian to apply to the Court for a review of the compulsory care
order, the Public Guardian shall make an application to the Court in accordance
with subsection (1).
(3) Notwithstanding subsection (1), no person other
than the guardian or the Public Guardian may apply to the Court for a review of
the compulsory care order more than once every 6 months.
RSA 1980 c6(Supp) s10
Issue of compulsory care
certificate
15(1) Where a dependent adult who is residing in a
place of care is not the subject of an order under section 11, the person in
charge of the place of care may issue a compulsory care certificate in the prescribed
form if
(a) the
person is satisfied that the dependent adult is in a condition that presents a
danger to himself or herself or others,
(b) the
person is satisfied that it is in the best interests of the dependent adult
that the dependent adult be confined in a place of care, and
(c) the
person has considered a written report of a physician or psychologist that
shows the extent to which the dependent adult presents a danger to himself or
herself or others.
(2) A compulsory care certificate under this
section is sufficient authority to confine the dependent adult named in the
certificate in a place of care for a period not exceeding 72 hours from the
time it was issued.
RSA 1980 c6(Supp) s10
Copy of certificate
16 Where a compulsory care certificate is issued
with respect to a dependent adult, the person issuing the certificate shall,
not later than 36 hours after issuing the certificate, give the dependent adult
and the dependent adult’s guardian a copy of the certificate and a written
statement in the prescribed form setting out
(a) that
the person issuing the certificate must apply to the Court for a review in
accordance with section 17,
(b) that
the dependent adult may be represented by legal counsel at any hearing, and
(c) the address and telephone number of the
office of the Legal Aid Society of Alberta nearest to the place of care where
the dependent adult is confined.
RSA 1980 c6(Supp) s10
Application for review
of certificate
17(1) Where a compulsory care certificate is issued
under section 15, the person issuing the certificate shall, not later than 96
hours after issuing the certificate, apply to the Court for a review of the
certificate and any subsequent certificates that may be issued with respect to
the same dependent adult before the review takes place.
(2) The
person issuing the certificate shall serve a copy of an application for a
review under subsection (1) on the persons who are required to be served with
an application under section 3(2) at least 5 days before the date fixed for the
review of the certificate.
(3) The
hearing respecting a review of a certificate shall be held within 28 days after
the application for a review or within any further period that the Court may
direct.
(4) On
hearing an application for a review of a compulsory care certificate, the Court
shall inquire as to whether
(a) the
compulsory care certificate and any subsequent compulsory care certificates
issued with respect to the same dependent adult were issued in the best
interests of the dependent adult, and
(b) the
dependent adult was in a condition that presented a danger to himself or
herself or others and whether the dependent adult continued to be in such a
condition after the certificate was issued.
(5) If
the Court is not satisfied that a compulsory care certificate should have been
issued, the Court may order the person issuing the certificate to refrain from
issuing any further compulsory care certificates respecting that dependent
adult without leave of the Court.
(6) If
the Court is satisfied that the compulsory care certificate was properly
issued, the Court shall
(a) issue
a compulsory care order under section 11, if the conditions referred to in
subsection (3) of that section are fulfilled, or
(b) refuse to issue a compulsory care order, if
it is satisfied that no further period of confinement of the dependent adult is
necessary.
RSA 1980 c6(Supp) s10
Diagnostic and treatment
services
18(1) The person in charge of a place of care shall
ensure that every dependent adult confined in a place of care pursuant to a
compulsory care order or a compulsory care certificate is provided with
(a) any
diagnostic and treatment service that the dependent adult is in need of and
that is reasonably required and that the staff of the place of care is able to
provide, and
(b) the
level of security that is reasonably required for the confinement of the
dependent adult in view of all the circumstances.
(2) If
a diagnostic and treatment service that relates to a condition referred to in
section 11(3)(c) is provided under subsection (1) to a dependent adult who is
the subject of a compulsory care order, the person in charge of the place of
care
(a) at
least once every 3 months shall reassess the diagnostic and treatment service,
and
(b) on the termination of the diagnostic and
treatment services shall apply to an appeal panel for a review of the
compulsory care order in accordance with section 82.
RSA 1980 c6(Supp) s10
Exercise of authority
19(1) A guardian shall exercise the guardian’s power
and authority
(a) in
the best interests of the dependent adult,
(b) in
such a way as to encourage the dependent adult to become capable of caring for
himself or herself and of making reasonable judgments in respect of matters
relating to his or her person, and
(c) in
the least restrictive manner possible.
(2) Notwithstanding subsection (1), where a
guardian has been granted power and authority with respect to a matter that is
contained in a personal directive, the guardian must exercise any power and
authority in accordance with any clear and relevant instructions in the
personal directive.
RSA 1980 cD‑32
s11;RSA 1980 c6(Supp) s11;1996 cP‑4.03 s35
Division 3
Public Guardian
Appointment of Public
Guardian
20(1) In accordance with the Public Service Act, there may be appointed a Public Guardian and
any other persons required for the purposes of this Act and the regulations.
(2) Where the Public Guardian is given any power or
duty under this or any other Act or a regulation under any of those Acts or by
an order of the Court, the Public Guardian may authorize in writing one or more
persons to exercise or perform that power or duty on any conditions or in any
circumstances that the Public Guardian prescribes and afterwards that power or
duty may be exercised or performed by the person or persons so authorized in
addition to the Public Guardian.
RSA 1980 cD‑32
s12;RSA 1980 c6(Supp) s12;1985 c21 s12;
1998 c23 s6
Duties of Public
Guardian
21 When in the opinion of the Public Guardian a
person is in need of a guardian and no person is willing, able and suitable
either to make an application for an order appointing a guardian or to be
appointed as the guardian of the person, or both, the Public Guardian shall
(a) make
an application for an order appointing the Public Guardian or any other person
as guardian of that person, or
(b) notify any person proposing to make an
application for an order appointing a guardian as to whether the Public
Guardian is willing to be appointed as guardian of the person in respect of whom
the application is proposed to be made.
RSA 1980 cD‑32
s13;1985 c21 s13
Public Guardian as
guardian
22 If the Court is not satisfied that a person
proposed as a guardian in an application under this Act meets the requirements
of this Act, it may, after giving notice of its intention to the Public
Guardian, appoint the Public Guardian as the guardian of the person in respect
of whom the application is made.
RSA 1980 cD‑32
s14;1985 c21 s14
Division 4
Other Guardianship Provisions
Service of application for
review
23(1) Nothing in this Act or in any order of the
Court made under this Act prevents a dependent adult or any interested person
on the dependent adult’s behalf from applying to the Court in the form
prescribed in the regulations for a review of a guardianship order at any time.
(2) A
person making an application for a review of a guardianship order must serve a
copy of the application and either a notice of motion, at least 10 days before
the date the application is to be heard, or a notice of objection in the
prescribed form, on
(a) the
dependent adult,
(b) the
person living in Canada who is
(i) the nearest relative of the dependent adult in respect of whom
the application is made, or
(ii) if the nearest relative referred to in subclause (i) is the
applicant, the next nearest relative of the person of the dependent adult,
(c) the
guardian of the dependent adult if the guardian is not the applicant or the
nearest relative served pursuant to clause (b),
(d) if
the dependent adult is a resident of an institution, the person in charge of
the institution,
(e) the
Public Guardian, if the Public Guardian is not the applicant or the person
served pursuant to clause (c),
(f) if
the person has made a personal directive, the agent, if any, designated in the
personal directive if the agent is not the applicant or a person otherwise
served pursuant to this subsection,
(g) any
attorney under an enduring power of attorney given by the person in respect of
whom the application for review is made if the attorney is not the applicant or
a person served pursuant to this subsection,
(h) any
trustee of the dependent adult if the trustee is not the applicant or a person
served pursuant to this subsection, and
(i) any
other person that the Court may direct.
(3) A
person who is served with a notice of objection form under subsection (2) may,
within 10 days after being served, file a notice of objection with the clerk of
the Court.
(4) Any
person, other than a person served under subsection (2), may file a notice of
objection within 10 days after service on any person under subsection (2).
(5) If
no notice of objection is filed within 10 days after service on all the persons
required to be served under subsection (2), the Court may consider the
application in the absence of the applicant and all the persons referred to in
subsection (2).
(6) If
a notice of objection is filed or if the Court considers that a hearing is
necessary, the applicant must, at least 10 days before the date the application
is to be heard, serve a notice of motion on the persons described in subsection
(2) and any person who filed a notice of objection under this section.
(7) No
order for service ex juris is necessary for service on any of the persons
referred to in subsection (2) in a province or territory of Canada other than
Alberta or in the United States of America, but service must be effected at
least
(a) 30
days before the date the application is to be heard in the case of a person in
a province or territory other than Alberta, or
(b) 45
days before the date the application is to be heard in the case of a person in
the United States of America.
(8) The
Court may, if it considers it appropriate to do so,
(a) shorten
the time for service on all or any of the persons referred to in subsection
(2),
(b) direct
the manner of service, or approve the manner of service that has been effected,
on all or any of the persons referred to in subsection (2), or
(c) dispense with the requirement for service on
all or any of the persons referred to in subsection (2), except the Public
Guardian.
RSA 1980 cD‑32
s15;RSA 1980 c6(Supp) ss13,30;
1985 c21 s15;1991 cP‑13.5 s17;1996 cP‑4.03 s35;1996 c13 s7
Court order after review
24(1) When considering an application for review of a
guardianship order, the Court
(a) shall
consider whether the conditions referred to in section 7(1) and (2) are still
applicable and whether the guardian has exercised the guardian’s power and
authority in accordance with the guardianship order and section 19, and
(b) may
amend, cancel, terminate, continue, vary or replace the order subject to any
conditions or requirements it considers necessary.
(2) If
the Court amends, varies or replaces an order under subsection (1), the
applicant shall serve a copy of the order as amended or varied or of the
replacement order, as the case may be, on the persons who are required to be
served with an application under section 23(2).
(3) If the Court cancels, terminates or continues
an order under subsection (1), the applicant shall serve on the persons
referred to in subsection (2) a notice indicating that the cancellation,
termination or continuation has taken place.
RSA 1980 cD‑32
s16;RSA 1980 c6(Supp) s16;1985 c21 s16;
1996 c13 s8
Appointment of alternate
guardian
25(1) On making a guardianship order or on a review
of a guardianship order, the Court may appoint an alternate guardian if
(a) the
person proposed as alternate guardian has given the person’s written consent to
act as guardian of the dependent person in the event of the death or temporary
absence of the guardian, and
(b) it
is satisfied that the persons on whom the application for a guardianship order
or a review of a guardianship order is served pursuant to section 23(2) have
had sufficient notice of the willingness of the person proposed as alternate
guardian to act as an alternate guardian.
(2) Section
8 applies to the person proposed as the alternate guardian.
(3) If the Court appoints an alternate guardian
under subsection (1), the applicant shall serve a copy of the order appointing
the alternate guardian on the persons who are required to be served with an
application under section 3(2).
RSA 1980 cD‑32
s17;RSA 1980 c6(Supp) s15;1985 c21 s17
Authority of alternate
guardian
26(1) If an alternate guardian is appointed, the
alternate guardian shall take over the office of guardian without further
proceedings
(a) in
the event of the death of the guardian, or
(b) if
authorized in writing by the guardian, during the temporary absence of the
guardian.
(2) An
authorization under subsection (1)(b) shall indicate the period during which
the alternate guardian may act as guardian and terminates
(a) at
the end of the period indicated on the authorization, or
(b) when
revoked in writing by the previous guardian,
whichever is earlier.
(3) The
alternate guardian shall notify the clerk of the Court in writing of the death
of the previous guardian and send the clerk of the Court a certified copy of
the death certificate of the previous guardian.
(4) On the appointment of the alternate guardian
becoming effective, the power and authority of the alternate guardian is the
same as that of the guardian replaced by the alternate guardian.
RSA 1980 cD‑32
s18;1985 c21 s18
Discharge of guardian
27(1) The guardian or any interested person may apply
to the Court for an order discharging the guardian from the guardian’s office.
(2) An
application pursuant to subsection (1) shall be made by notice of motion in the
judicial district in which the application for the order appointing the guardian
was made.
(3) The
person making an application under subsection (1) shall, at least 10 days
before the date the application is to be heard, serve a copy of the application
on the persons referred to in section 23(2) and section 23(8) applies.
(4) When
the Court considers that a dependent adult is no longer in need of a guardian
or if the Court is satisfied that a guardian
(a) is
unable or unwilling to continue to act as guardian,
(b) refuses
to act or to continue to act as guardian,
(c) fails
to act as guardian or fails to act in accordance with a guardianship order,
(d) acts
in an improper manner or in a manner that has endangered or that may endanger
the well‑being of the dependent adult,
(e) is
no longer a suitable person to act as guardian, or
(f) is
no longer a resident of Alberta,
the Court may make an
order discharging the guardian from the guardian’s office or make any other
order it considers appropriate in the circumstances.
(5) Before
making an order under subsection (4), the Court shall satisfy itself that, if
necessary,
(a) suitable
arrangements have been or will be made in respect of the dependent adult, or
(b) an
application for another guardianship order will be made.
(6) If the Court makes an order under subsection
(4), the applicant shall serve a copy of the order on the persons who are
required to be served with a copy of an application under section 23.
RSA 1980 cD‑32
s19;1985 c21 s19
Death of guardian
28(1) On the death of a guardian and in the absence
of an alternate guardian, the Public Guardian, on receiving notice of the death
of the guardian, becomes the guardian with the same power and authority as the
former guardian.
(2) On
becoming the guardian of a person under subsection (1), the Public Guardian
shall notify the Court in writing of that fact and send evidence of death of
the former guardian to the Court.
(3) The
Public Guardian continues to be the guardian of the dependent adult until
(a) a
new guardian is appointed by the Court, or
(b) the Court makes an order discharging the
Public Guardian as guardian of the dependent adult.
RSA 1980 cD‑32
s20;1985 c21 s20;1996 c13 s9
Treatment of
incapacitated adults
29(1) Where an adult person
(a) is,
in the written opinion of 2 physicians, in need of an examination or medical,
surgical or obstetrical treatment or is, in the written opinion of 2 dentists,
in need of dental treatment,
(b) is
incapable by reason of mental or physical disability of understanding and
consenting to the examination or medical, surgical, obstetrical or dental
treatment needed, and
(c) has
not previously withheld consent to the examination or medical, surgical,
obstetrical or dental treatment needed, to the knowledge of either of the
physicians or the dentists referred to in clause (a),
a physician or dentist
may, without the consent of any person, examine the person, prescribe treatment
for the person and provide the person with the medical, surgical or obstetrical
treatment or with the dental treatment, as the case may be, in the manner and to
the extent that is reasonably necessary and in the best interests of the person
examined or treated, in the same way that the physician or dentist could have
acted if the person had been an adult of full legal capacity who consented to
the examination or treatment.
(2) Subsection
(1) does not apply to a dependent adult who is the subject of an order under
section 7 appointing a guardian with the power and authority to consent to
health care for that dependent adult.
(3) Subsection
(1) does not apply to a person who has made a personal directive relating to a
matter referred to in subsection (1) unless
(a) the
personal directive does not designate an agent to give the consent, and
(b) the personal directive does not contain any
clear and relevant instructions.
RSA 1980 c6(Supp)
s16;1996 cP‑4.03 s35
Part 2
Trusteeship
Division 1
Application For Trusteeship Order
Application for
trusteeship order
30(1) Subject to this section and section 31, any
interested person may apply to the Court for an order appointing a trustee in
respect of the estate of an adult person.
(2) No
application shall be made to the Court under subsection (1) unless it is
accompanied with a report of a physician or a psychologist in the prescribed
form.
(3) The interested person making an application
under subsection (1) shall, at the same time the application is made, file with
the Court the written consent of the person proposed as trustee to the effect
that the person is willing to act as the trustee of the estate of the person in
respect of whom the application is made.
RSA 1980 cD‑32
s21;RSA 1980 c6(Supp) s17
Application for order
appointing trustee
31(1) An application for an order appointing a
trustee may be made in the form prescribed in the regulations and must be made
in the judicial district in which the person in respect of whom the application
is made is ordinarily resident unless the Court considers it appropriate in the
circumstances of the case for the application to be made in any other judicial
district.
(2) The
interested person making the application must serve a copy of the application,
the report referred to in section 30 and either a notice of motion, at least 10
days before the date the application is to be heard, or a notice of objection
in the prescribed form, on
(a) the
person in respect of whom the application is made,
(b) the
person living in Canada who is
(i) the nearest relative of the person in respect of whom the
application is made, or
(ii) if the nearest relative referred to in subclause (i) is the
applicant, the next nearest relative of the person in respect of whom the
application is made,
(c) the
person proposed as the trustee of the person in respect of whom the application
is made if the person is not the applicant or the nearest relative served
pursuant to clause (b),
(d) if
the person in respect of whom the application is made is a resident of an
institution, the person in charge of the institution,
(e) the
Public Trustee, if the Public Trustee is not the applicant or the person served
pursuant to clause (c),
(f) if
the person in respect of whom the application is made has made a personal
directive, the agent, if any, designated in the personal directive if the agent
is not the applicant or a person otherwise served pursuant to this subsection,
(g) any
attorney under an enduring power of attorney given by the person in respect of
whom the application is made if the attorney is not the applicant or a person
served pursuant to this subsection,
(h) any
guardian of the person in respect of whom the application is made if the
guardian is not the applicant or a person served pursuant to this subsection,
and
(i) any
other person that the Court may direct.
(3) A
person who is served with a notice of objection form under subsection (2) may,
within 10 days after being served, file a notice of objection with the clerk of
the Court.
(4) Any
person, other than a person served under subsection (2), may file a notice of
objection within 10 days after service on any person under subsection (2).
(5) If
no notice of objection is filed within 10 days after service on all the persons
required to be served under subsection (2), the Court may consider the
application in the absence of the applicant and all the persons referred to in
subsection (2).
(6) If
a notice of objection is filed or if the Court considers that a hearing is
necessary, the applicant must, at least 10 days before the date the application
is to be heard, serve a notice of motion on the persons described in subsection
(2) and any person who filed a notice of objection under this section.
(7) No
order for service ex juris is necessary for service on any of the persons
referred to in subsection (2) in a province or territory of Canada other than
Alberta or in the United States of America, but service must be effected at
least
(a) 30
days before the date the application is to be heard in the case of a person in
a province or territory other than Alberta, or
(b) 45
days before the date the application is to be heard in the case of a person in
the United States of America.
(8) The
Court may, if it considers it appropriate to do so,
(a) shorten
the time for service on all or any of the persons referred to in subsection
(2),
(b) direct
the manner of service, or approve the manner of service that has been effected,
on all or any of the persons referred to in subsection (2), or
(c) dispense with the requirement for service on
all or any of the persons referred to in subsection (2), except the Public
Trustee.
RSA 1980 cD‑32
s22;RSA 1980 c6(Supp) ss19,30;
1985 c21 s22;1991 cP‑13.5 s17;1996 cP‑4.03 s35;1996 c13 s10
Application without
report
32(1) Notwithstanding sections 30(2) and 31(2) and
(3), if the Court is satisfied that
(a) some
or all of the property or estate of the adult person in respect of whom the
application is made is in immediate danger of serious loss, and it is necessary
for someone to make decisions to prevent that loss, and
(b) it
is impracticable or not possible to obtain a report referred to in section 30
before the loss is likely to occur,
the Court may dispense
with the requirement for the report referred to in section 30 and may appoint a
trustee to take possession of the property or estate and safely keep, manage,
preserve and protect the property or interests of the estate on the terms and
conditions that the Court directs.
(2) On
granting an order under this section, the Court shall specify the time, not
later than 90 days after the date of the order, within which the order must be
reviewed by the Court.
(3) On
a review of an order granted under this section, the Court may
(a) cancel
the order,
(b) extend
the order once for up to 6 months after which time the order lapses, or
(c) consider it as an application under section
31 if the requirements of section 31 have been met.
1996 c13 s11
Inquiry by Court and
report
33(1) When considering an application for an order
appointing a trustee, the Court shall inquire as to whether
(a) the
person in respect of whom the application is made is in need of a trustee, and
(b) it
is in the best interests of the person in respect of whom the application is
made for a trustee to be appointed for the person.
(2) If
(a) the
Court has any doubt as to whether a trustee should be appointed, or
(b) a
trusteeship order is being reviewed by the Court,
the Court may appoint a person to prepare a report on the
person named in the application with respect to any or all of that person’s
physical, mental, social, vocational, residential, educational or other needs
both present and future and generally that person’s ability to make reasonable
judgments with respect to matters relating to that person’s estate.
RSA 1980 cD‑32
s23;1996 c13 s12
Persons at hearing
34 If a hearing is held in respect of an
application for an order appointing a trustee or on a review of a trusteeship
order
(a) any
person served pursuant to section 31(2) or (6), and
(b) any
other person who wishes to make representations and whom the Court agrees to
hear,
may appear and make representations.
RSA 1980 cD‑32
s24;1996 c13 s13
Division 2
Trusteeship Order and Its Effect
Appointment of trustee
35(1) When the Court is satisfied that a person named
in an application for an order appointing a trustee is
(a) an
adult,
(b) unable
to make reasonable judgments in respect of matters relating to all or any part
of the person’s estate, and
(c) in
need of a trustee,
the Court may make an
order appointing a trustee.
(2) The
Court shall not make an order under subsection (1) unless it is satisfied that
the order would be in the best interests of the person in respect of whom the
application is made.
(3) In
considering the matters referred to in subsections (1)(c) and (2), the Court
shall have regard to the existence of any enduring power of attorney given by
the person in respect of whom the application is made.
(4) If
the Court makes an order under this section, the applicant shall serve a copy
of the order on the persons who are required to be served with an application
under section 31(2).
(5) If
(a) the
Court makes an order under this section in respect of an attorney under an
enduring power of attorney, and
(b) the
Court has reason to believe that the donor of that power may be unable to make
reasonable judgments in respect of matters relating to all or part of the
donor’s estate,
the Court may direct the applicant to make an application
for a trusteeship order in respect of the donor’s estate.
RSA 1980 cD‑32
s25;RSA 1980 c6(Supp) s20;1991 cP‑13.5 s17
Persons eligible as
trustee
36(1) The Court may appoint as a trustee of the
estate of a dependent adult
(a) any
adult individual who consents to act as trustee and in respect of whom the
Court is satisfied that
(i) the individual will act in the best interests of the dependent
adult,
(ii) the individual will not be in a position where the individual’s
interests will conflict with the dependent adult’s interests,
(iii) the individual is a suitable person to act as the trustee of the
estate of the dependent adult, and
(iv) the individual is a resident of Alberta,
(b) a
trust corporation, or
(c) the
Public Trustee.
(2) Notwithstanding
subsection (1)(a)(ii), an individual shall not be considered to be in a
position where the individual’s interests will conflict with the dependent
adult’s interests by reason only of the fact that the individual is a potential
beneficiary or a relative of the dependent adult.
(3) If
the Court appoints the Public Trustee as the trustee under subsection (1), it
shall include in the order appointing the trustee a direction as to the times
at which the Public Trustee shall submit a statement of the Public Trustee’s
accounts verified under oath to the Court for approval for the purposes of
section 42.
(4) The
Court may require an individual proposed as trustee or, in the case of a trust
corporation proposed as trustee, an individual representing the trust
corporation, to attend and answer questions that will enable the Court to
determine whether the proposed trustee will be able, in the opinion of the
Court,
(a) to
carry out the duties of the trustee, and
(b) in the case of an individual proposed as
trustee, to meet the requirements of subsection (1)(a).
RSA 1980 cD‑32
s26;RSA 1980 c6(Supp) s21;1985 c21 s23;
1991 cL‑26.5 s335(16)
Review of trusteeship
order
37(1) In making or reviewing a trusteeship order, the
Court may make its order subject to any conditions or restrictions it considers
necessary.
(2) Subject
to section 32, on making or reviewing a trusteeship order the Court shall
specify
(a) the
time within which the order must be reviewed by the Court, which shall not be
later than 6 years after the date of the order or the date of the review of the
order, as the case may be,
(b) the
person required to apply to the Court for the review, and
(c) any requirement to be complied with by the
trustee or any other person with respect to a review of the circumstances of
the dependent adult.
RSA 1980 cD‑32
s27;RSA 1980 c6(Supp) s22;1985 c21 s24;
1996 c13 s14
Authority of trustee
38 Subject to this Act, when the Court makes
a trusteeship order, the trustee, with respect to the estate or that part of
the estate under the trustee’s trusteeship,
(a) has
the right to and may take possession and control of all the real and personal
property of the dependent adult, and
(b) may
(i) in the case of an order under section 32, safely keep, manage,
preserve and protect the property or interests of the estate, and
(ii) in any other case, manage, handle,
administer, sell, dispose of or otherwise deal with the estate in accordance
with section 39 and an authorization under section 40 or an order under section
41.
RSA 1980 cD‑32
s28;1996 c13 s15
Authority of trustee
39 Subject to any restriction or condition imposed
by the Court, a trustee may, in respect of the estate of the dependent adult
under the trustee’s trusteeship and without obtaining the authority or
direction of the Court, do all or any of the following:
(a) grant
or accept leases of real or personal property for a term not exceeding 3 years;
(b) invest
and deposit any money in accordance with the regulations;
(c) repealed
2006 c9 s8;
(d) transfer
property held in trust by the dependent adult, either solely or jointly with
another, to the person beneficially entitled to it;
(e) give
a consent to the transfer or assignment of a lease if the consent is required;
(f) perform
a contract entered into by the dependent adult or by the dependent adult’s
guardian;
(g) draw,
accept and endorse bills of exchange and promissory notes, endorse bonds,
debentures, coupons and other negotiable instruments and securities, and assign
choses in action;
(h) give
or receive a notice on behalf of the dependent adult that relates to the
dependent adult’s estate;
(i) sell
or otherwise dispose of personal property having a fair market value that is
not greater than the amount prescribed by the regulations;
(j) commence,
compromise or settle a claim or court action that relates to the estate;
(k) if land in which the dependent adult has a
beneficial interest is held by the personal representative of the estate of a
deceased person, consent to the sale of that land by the personal
representative of the deceased’s estate.
RSA 2000 cD‑11
s39;2001 c28 s8;2006 c9 s8
Authority conferred on
trustee by Court
40 The Court may on any terms and conditions it
considers appropriate, authorize a trustee to do all or any of the following in
respect of the estate of a dependent adult under the trustee’s trusteeship:
(a) purchase,
sell, mortgage, grant or accept leases for more than 3 years or otherwise
dispose of real property or personal property having a fair market value that
is greater than the amount prescribed by the regulations referred to in section
39(i);
(b) consent
to the disposition of the homestead, as defined in the Dower Act, of the dependent adult’s spouse;
(c) exchange
or partition property and give or receive money for equality of exchange or
partition;
(d) carry
on the trade or business of the dependent adult;
(e) surrender
a lease, with or without accepting a new lease, or accept a surrender of a
lease;
(f) exercise
a power or give a consent required for the exercise of a power vested in the
dependent adult;
(g) exercise
a right or obligation to elect, belonging to or imposed on the dependent adult;
(h) compromise
or settle a debt;
(i) notwithstanding
the regulations, invest funds in any securities and assets that the Court
approves;
(j) do any other thing approved by the Court.
RSA 2000 cD‑11
s40;2001 c28 s8;2006 c9 s8
Ademption not applicable
41(1) A trustee may make an ex parte application,
unless directed otherwise by the Court, for an order authorizing the trustee to
sell property belonging to the dependent adult and directing the trustee to
place the proceeds of the sale into an identifiable trust account, to be
administered as the Court directs having regard to the present and future needs
of the dependent adult.
(2) If a trustee complies with an order under
subsection (1) and if any property sold pursuant to the order is the subject of
a devise or bequest in the last will of the dependent adult, that devise or
bequest of the property does not fail under the doctrine of ademption.
1996 c13 s18
Division 3
Duties of Trustee
Filing of inventory and
accounts
42(1) When a trustee of the estate of a dependent
adult is appointed or when an alternate trustee takes office by reason of the
death of the previous trustee, the following provisions apply unless the Court
modifies, alters or dispenses with some or all of them:
(a) the
trustee, at the time of the application under section 30 or within 6 months of
being appointed or taking office, shall file in the office of the clerk of the
Court a true inventory and account of the assets and liabilities of the estate
of the dependent adult in respect of which the trustee is appointed trustee;
(b) if
any asset or liability of the estate of the dependent adult is discovered after
the filing of the inventory and account, the trustee shall file a true
inventory and account of the asset or liability on its discovery;
(c) every
inventory and account shall be verified by the oath of the trustee or of some
person in a position to verify it.
(2) Any
interested person may apply to the Court for an order that the trustee
(a) bring
in and pass the trustee’s accounts;
(b) file
an inventory of the assets and liabilities of the estate of the dependent
adult;
(c) do
some other thing that the circumstances may require.
(3) A
trustee, other than the Public Trustee, shall, at least once every 2 years,
file the trustee’s accounts with the clerk of the Court and apply to the Court,
on any notice that the Court may direct, for an order passing the trustee’s
accounts and for any further or other order or direction that circumstances
require.
(4) Notwithstanding
subsection (3), the Court may dispense with the requirement for passing the
accounts of the trustee and
(a) permit
the trustee to file the trustee’s accounts with the clerk of the Court and
where the Court is satisfied that it is in the best interests of the estate and
the dependent adult, approve the trustee’s accounts in the form in which they
are filed, or
(b) dispense
with accounting for a period not exceeding 4 years from the date of the order.
(5) Notwithstanding
subsection (3), having regard to the size of the estate, the amount of income
generated or the nature of the assets, the Court may
(a) dispense
with the requirement for the passing of accounts for a period not exceeding 12
years from the date of the order if the trustee maintains accounts and files a
summary accounting statement in the prescribed form with the clerk of the Court
at least once every 6 years or on review of the trusteeship order, and
(b) order
the trustee to do any other thing that the circumstances may require.
(6) If
the Public Trustee is the trustee, the Public Trustee shall
(a) at
the time that the Court directs under section 36(3) submit the statement of the
Public Trustee’s accounts referred to in that section to the Court for
approval, and
(b) bring
in and pass the Public Trustee’s accounts at the time that the Court directs
under subsection (2) if the Court makes an order under that subsection.
(7) If
the Court makes an order under this section, the applicant shall serve a copy
of the order on the persons who are required to be served with an application
under section 31.
(8) Notwithstanding subsection (7), the Court may,
if it considers it appropriate, dispense with the requirement for service on
all or any of the persons who are required to be served with an application
under section 31, except the dependent adult and the nearest relative of the
dependent adult who is living in Canada if that relative is not the trustee.
RSA 1980 cD‑32
s31;RSA 1980 c6(Supp) s23;1985 c21 s27;
1996 c13 s19
Accounting on discharge
of trustee
43 When the Court terminates a trusteeship order or
discharges a trustee from the trustee’s office, the Court shall
(a) direct
the trustee to pass the trustee’s accounts,
(b) where
it is satisfied that it is in the best interests of the estate and the
dependent adult, direct the trustee to file the trustee’s accounts with the
clerk of the Court and approve the trustee’s accounts in the form in which they
are filed, or
(c) direct that accounting be dispensed with.
1985 c21 s28;1996 c13
s20
Accounting on death of
dependent adult
44(1) On the death of a dependent adult, the trustee
shall account to the legal representative of the estate of the dependent adult.
(2) If the trustee does not provide an accounting
under subsection (1) to the satisfaction of the legal representative, the legal
representative may apply by notice of motion to the Court for an order
requiring the trustee to bring in and pass the trustee’s accounts relating to
the estate or that part of the estate formerly under the trustee’s trusteeship.
1985 c21 s28
Accounting method
45 All accounting required under sections
42, 43 and 44 must be done in accordance with the Surrogate Rules.
1996 c13 s21
Exercise of authority by
trustee
46(1) A trustee shall, subject to this Act, exercise
the trustee’s authority for the maintenance, education, benefit and advancement
of the dependent adult in respect of whose estate the trustee is trustee.
(2) A
trustee may, subject to this Act and with respect to the estate under the
trustee’s trusteeship, exercise the trustee’s authority for the maintenance,
education, benefit and advancement of
(a) the
spouse or adult interdependent partner of the dependent adult, if any,
(b) any
minor child of the dependent adult,
(c) any
adult child of the dependent adult who by reason of physical or mental
disability is unable to earn a living, or
(d) with
the consent of the Court, any other person,
or all or any of them.
RSA 2000 cD‑11
s46;2002 cA‑4.5 s30
Division 4
Appointment of the Public Trustee
Duties of Public Trustee
47 When in the opinion of the Public Trustee the
estate of a person is in need of a trustee and no person is willing, able and
suitable either to make an application for an order appointing a trustee or to
be appointed as the trustee of the person’s estate, or both, the Public Trustee
shall
(a) make
an application for an order appointing the Public Trustee or any other person
as trustee of all or any part of that person’s estate, or
(b) notify any person proposing to make an
application for an order appointing a trustee whether the Public Trustee is
willing to be appointed as the trustee of the estate of the person in respect
of whom the application is proposed to be made.
RSA 1980 cD‑32
s33;1985 c21 s29
Appointment of Public
Trustee
48 If the Court is not satisfied that a person
proposed as a trustee in an application under this Act meets the requirements
of this Act, it may, after giving notice of its intention to the Public
Trustee, appoint the Public Trustee as the trustee of all or part of the estate
of the person in respect of whom the application is made.
RSA 1980 cD‑32 s34
Division 5
Other Trusteeship Provisions
Service of application
for review
49(1) Nothing in this Act or in any order of the
Court made under this Act prevents a dependent adult or any interested person
on the dependent adult’s behalf from applying to the Court in the form
prescribed in the regulations for a review of a trusteeship order at any time.
(2) A
person making an application for a review of a trusteeship order must serve a
copy of the application and either a notice of motion, at least 10 days before
the date the application is to be heard, or a notice of objection, on
(a) the
dependent adult,
(b) the
person living in Canada who is
(i) the nearest relative of the dependent adult in respect of whom
the application is made, or
(ii) if the nearest relative referred to in subclause (i) is the
applicant, the next nearest relative of the person of the dependent adult,
(c) the
trustee of the dependent adult if the trustee is not the applicant or the
nearest relative served pursuant to clause (b),
(d) if
the dependent adult is a resident of an institution, the person in charge of
the institution,
(e) the
Public Trustee, if the Public Trustee is not the applicant or the person served
pursuant to clause (c),
(f) any
guardian of the dependent adult if the guardian is not the applicant or a
person served pursuant to this subsection, and
(g) any
other person that the Court may direct.
(3) A
person who is served with a notice of objection form under subsection (2) may,
within 10 days after being served, file a notice of objection with the clerk of
the Court.
(4) Any
person, other than a person served under subsection (2), may file a notice of
objection within 10 days after service on any person under subsection (2).
(5) If
no notice of objection is filed within 10 days after service on all the persons
required to be served under subsection (2), the Court may consider the
application in the absence of the applicant and all the persons referred to in
subsection (2).
(6) If
a notice of objection is filed or if the Court considers that a hearing is
necessary, the applicant must, at least 10 days before the date the application
is to be heard, serve a notice of motion on the persons described in subsection
(2) and any person who filed a notice of objection under this section.
(7) No
order for service ex juris is necessary for service on any of the persons
referred to in subsection (2) in a province or territory of Canada other than
Alberta or in the United States of America, but service must be effected at
least
(a) 30
days before the date the application is to be heard in the case of a person in
a province or territory other than Alberta, or
(b) 45
days before the date the application is to be heard in the case of a person in
the United States of America.
(8) The
Court may, if it considers it appropriate to do so,
(a) shorten
the time for service on all or any of the persons referred to in subsection
(2),
(b) direct
the manner of service, or approve the manner of service that has been effected,
on all or any of the persons referred to in subsection (2), or
(c) dispense with the requirement for service on
all or any of the persons referred to in subsection (2), except the Public
Trustee.
RSA 1980 cD‑32
s35;RSA 1980 c6(Supp) s30;1985 c21 s30;
1996 c13 s22
Court order after review
50 On hearing an application for review of a
trusteeship order, the Court may amend, cancel, terminate, continue, vary or
replace the order subject to any conditions or requirements it considers
necessary.
RSA 1980 cD‑32 s36
Appointment of alternate
trustee
51(1) On making a trusteeship order or on a review of
a trusteeship order, the Court may appoint an alternate trustee if
(a) the
person proposed as alternate trustee has given the person’s written consent to
act as trustee of the estate of the dependent adult in the event of the death
or temporary absence of the trustee, and
(b) it
is satisfied that the persons on whom the application for a trusteeship order
or a review of a trusteeship order is served pursuant to section 49(2) have had
sufficient notice of the willingness of the person proposed as alternate
trustee to act as an alternate trustee.
(2) Section 36 applies to the person proposed as
alternate trustee.
RSA 1980 cD‑32
s37;1985 c21 s31
Authority of alternate
trustee
52(1) If an alternate trustee is appointed, the
alternate trustee shall take over the office of trustee without further
proceedings
(a) in
the event of the death of the trustee, or
(b) if
authorized in writing by the trustee, during the temporary absence of the
trustee.
(2) An
authorization under subsection (1)(b) shall indicate the period during which
the alternate trustee may act as trustee and terminates
(a) at
the end of the period indicated on the authorization, or
(b) when
revoked in writing by the previous trustee,
whichever is earlier.
(3) The
alternate trustee shall notify the clerk of the Court in writing of the death
of the previous trustee and send the clerk of the Court a certified copy of the
death certificate of the previous trustee.
(4) On
the appointment of the alternate trustee becoming effective, the authority of
the alternate trustee is the same as that of the trustee replaced by the
alternate trustee.
(5) When
the alternate trustee takes over the office of trustee because of the death of
the previous trustee, the alternate trustee may require the legal
representative of the previous trustee to provide an accounting with respect to
the estate of the dependent adult.
(6) If the legal representative of the previous
trustee does not provide an accounting under subsection (5) to the satisfaction
of the alternate trustee, the alternate trustee may apply by notice of motion
to the Court for an order requiring the legal representative to bring in and
pass the accounts of the previous trustee with respect to the estate of the
dependent adult.
RSA 1980 cD‑32
s38;1985 c21 s32
Discharge of trustee
53(1) The trustee or any interested person may apply
to the Court for an order discharging the trustee from the trustee’s office.
(2) An
application pursuant to subsection (1) shall be made by notice of motion in the
judicial district in which the application for the order appointing the trustee
was made.
(3) The
person making an application under subsection (1) shall, at least 10 days
before the date the application is to be heard, serve a copy of the application
on the persons referred to in section 31(2) and section 31(8) applies.
(4) When
the Court considers that the estate of a dependent adult is no longer in need of
a trustee or if the Court is satisfied that a trustee
(a) is
unable or unwilling to continue to act as trustee,
(b) refuses
to act or to continue to act as trustee,
(c) fails
to act as trustee or fails to act in accordance with a trusteeship order,
(d) acts
in an improper manner or in a manner that has endangered or that may endanger
the estate of the dependent adult,
(e) has
been guilty of a breach of trust,
(f) is
no longer a suitable person to act as trustee, or
(g) is
no longer a resident of Alberta,
the Court may make an
order discharging the trustee from the trustee’s office or make any other order
it considers appropriate in the circumstances.
(5) Before
making an order under subsection (4), the Court shall satisfy itself that, if
necessary,
(a) suitable
arrangements have been or will be made in respect of the estate of the
dependent adult, or
(b) an application for another trusteeship order
will be made.
RSA 1980 cD‑32
s39;1985 c21 s33
Estate reimbursed
54(1) The Court, on passing the accounts of a
trustee, on review of a trusteeship order or during an application to remove a
trustee, may
(a) inquire
into and adjudicate on a complaint or claim by an interested person of
misconduct, neglect or default on the part of the trustee, and
(b) order
that the trustee reimburse the estate to the extent of the loss suffered.
(2) The Court may order the trial of an issue of a
complaint or claim under subsection (1)(a) and may make all necessary
directions with respect to it.
1996 c13 s23
Death of trustee
55(1) On the death of a trustee and in the absence of
an alternate trustee, the Public Trustee, on receiving notice of the death of
the trustee, becomes trustee of the estate of the dependent adult, with the
same authority as the former trustee.
(2) The
Public Trustee continues to be the trustee of the estate of the dependent adult
until
(a) a
new trustee is appointed by the Court, or
(b) the Court makes an order discharging the
Public Trustee as trustee of the estate of the dependent adult.
RSA 1980 cD‑32 s41
Accounting by legal
representative of previous trustee
56(1) When the Public Trustee takes over the office
of trustee, the Public Trustee may require the legal representative of the
previous trustee to provide an accounting with respect to the estate of the
dependent adult.
(2) If the legal representative of the previous
trustee does not provide an accounting under subsection (1) to the satisfaction
of the Public Trustee, the Public Trustee may apply by notice of motion to the
Court for an order requiring the legal representative to bring in and pass the
accounts of the previous trustee with respect to the estate of the dependent
adult.
1985 c21 s35
Possession of last will
57(1) A trustee may call in or receive an original
will made by a person who is a dependent adult from any person, including a
lawyer, who has possession of it, and that person must surrender the will to
the trustee.
(2) A person who had possession of the will before
surrendering it under subsection (1) may retain a copy.
1996 c13 s24
Part 3
Common Guardianship and Trusteeship Provisions
Signing by guardian or
trustee
58 A guardian or trustee may on behalf of a
dependent adult sign and do all things necessary to give effect to any power or
authority vested in the guardian or trustee.
RSA 1980 cD‑32 s42
No payment to guardians
59 A guardian is not entitled to any
remuneration, compensation, fees or allowance for effort made or for time
expended on behalf of the dependent adult.
1996 c13 s25
Trustee’s compensation
60(1) A trustee is entitled to be compensated from
the estate of the dependent adult for the trustee’s efforts, care,
responsibility and trouble and for the time expended as trustee on behalf of
the dependent adult, as authorized by the Court, or in the case of the Public
Trustee, as authorized by the Public Trustee Act.
(2) At a hearing to pass interim or final accounts
or on an application for compensation made under the Surrogate Rules, the Court
may set the compensation for the trustee and give directions with respect to
it.
1996 c13 s25
Trustee’s expenses
61 A trustee is entitled to be reimbursed
for the direct expenses incurred and disbursements made on behalf of the
dependent adult.
1996 c13 s25
Purchase of necessaries
62(1) A guardian, subject to any provision contained
in the guardianship order appointing the guardian, may purchase necessaries for
the dependent adult without the consent of the dependent adult, the trustee of
the dependent adult’s estate, if any, or any attorney under an enduring power
of attorney, if any.
(2) When
a guardian purchases necessaries for the dependent adult
(a) the
dependent adult is liable to pay for them or reimburse the guardian for any
money expended by the guardian in the purchase of the necessaries, or
(b) if there is a trustee of the estate of the
dependent adult or an attorney under an enduring power of attorney, the trustee
or the attorney, as the case may be, shall, out of the estate, pay for the
necessaries or reimburse the guardian for any money expended by the guardian in
the purchase of the necessaries.
RSA 1980 cD‑32
s43;1991 cP‑13.5 s17
Contracts binding
63 When a guardian or a trustee enters into a
contract on behalf of a dependent adult, the contract is binding on the
dependent adult after the guardianship order or trusteeship order is terminated
in the same manner and to the same extent as if the dependent adult had made
the contract and the dependent adult had been an adult capable of making the
contract.
RSA 1980 cD‑32 s44
Application for direction
of Court
64(1) A guardian or trustee may apply by notice of
motion for the opinion, advice or direction of the Court of Queen’s Bench on
any question respecting a dependent adult or respecting the management or
administration of the dependent adult’s estate.
(2) The
guardian or the trustee acting on the opinion, advice or direction given by the
Court of Queen’s Bench is deemed, so far as the guardian’s or trustee’s own
responsibility is concerned, to have discharged the guardian’s or trustee’s
duty as guardian or trustee, as the case may be, in respect of the subject‑matter
of the opinion, advice or direction.
(3) Subsection (2) does not operate to indemnify a
guardian or trustee in respect of any act done in accordance with the opinion,
advice or direction if the guardian or trustee has been guilty of any fraud or
wilful concealment or misrepresentation in obtaining the opinion, advice or
direction.
RSA 2000 cD‑11
s64;RSA 2000 c16(Supp) s42
Testamentary disposition
65 A guardianship order or a trusteeship order is
not of itself sufficient to establish that a dependent adult does not have
legal capacity to make a testamentary disposition.
RSA 1980 cD‑32 s46
Foreign orders
66(1) In this section, “foreign order” means an order
made by a court outside Alberta that appoints a person having duties comparable
to those of a guardian or trustee with respect to a person who is 18 years or
older or with respect to the estate of such a person.
(2) If
a foreign order is made in any jurisdiction outside Canada approved by the
Lieutenant Governor in Council or in any province or territory of Canada, the
foreign order may be resealed on an order of the Court of Queen’s Bench and, on
resealing, the foreign order
(a) is
of the same force and effect in Alberta as if it were issued by the Court of
Queen’s Bench,
(b) is,
as regards an estate in Alberta, subject to any order of the Court of Queen’s
Bench to which a trusteeship order is subject, and is, as regards a person in
Alberta, subject to any order of the Court of Queen’s Bench to which a
guardianship order is subject, and
(c) is,
as regards an estate in Alberta, subject to appeal and review in the same
manner as a trusteeship order and is, as regards a person in Alberta, subject
to appeal and review in the same manner as a guardianship order.
(3) When
the Court makes an order under subsection (2), it shall set a date for the
review of the resealed order and the date for review shall be
(a) the
date provided for review by the terms of the resealed order, or
(b) the
date for review required by this Act,
whichever date is
sooner.
(4) A
duplicate of a foreign order sealed with the seal of the court that sealed it
or a copy of a foreign order certified by or under the direction of the court
that granted it is as effective as the original.
(5) A
foreign order shall not be resealed under this section until
(a) a
certificate has been issued by the registrar, clerk or other officer of the
court that issued the foreign order to the effect that the order is wholly
unrevoked and of full effect, and
(b) security
has been given to a court in Alberta to cover the part of the estate in Alberta
of the person in respect of whom it was made, unless the Court of Queen’s Bench
dispenses with security.
(6) An application to reseal a foreign order and a
copy of the resealed order shall be served on the persons referred to in
section 3 or 31, whichever is appropriate.
RSA 2000 cD‑11
s66;RSA 2000 c16(Supp) s42
Order re costs
67 The Court of Queen’s Bench or the Court of
Appeal may order that the costs of any application or report made to it under
this Act
(a) be
paid by all or any of the following:
(i) subject to the regulations, the Crown in right of Alberta;
(ii) the person making the application, where it is satisfied that it
would not be a hardship to do so;
(iii) the person in respect of whom the application is made, where it
is satisfied that it would not be a hardship to do so;
(iv) the estate of the dependent adult, where it is satisfied that it
would not be a hardship to do so;
(b) be
paid by a trustee if the trustee has been ordered to reimburse the estate under
section 54;
(c) be paid by the person making the application
or a person opposing the application, where it is satisfied that the
application or the opposition to the application, as the case may be, is
frivolous or vexatious.
RSA 2000 cD‑11
s67;RSA 2000 c16(Supp) s42
Confidentiality of
information
68(1) No person shall disclose any file, document or
information obtained by the Public Guardian or the Public Trustee pursuant to
this Act that deals with the personal history or records of a dependent adult
except
(a) at
a proceeding under this Act,
(b) with
the written consent of the Minister, or
(c) where
in the opinion of the Public Guardian or the Public Trustee, as the case may
be, it is in the best interests of the dependent adult to disclose the file,
document or information.
(2) Subsection
(1) does not apply to a disclosure specifically authorized to be made by or
under this Act or the Marriage Act,
or to a disclosure
(a) to
any employee of the Department administered by the Minister or of any other
department or agency of the Government,
(b) to
any official of the Government of Canada, of any province or territory of
Canada or of an agency of any of those Governments, or
(c) to
any person assisting or acting as an agent of the Department administered by
the Minister,
or to a solicitor
acting on behalf of any of them, if the disclosure is made to enable the giving
of assistance and information required for the proper administration of this
Act.
(3) The
Public Guardian and the Public Trustee shall not publish in any form or by any
means
(a) the
name of a dependent adult or any nearest relative concerned in any proceeding
under this Act, or
(b) an
account of the circumstances brought out at any proceeding under this Act.
(4) Nothing
in subsections (1) to (3) prohibits the Public Guardian or the Public Trustee
from publishing notices of hearings or other notices that may be necessary in
the interests of justice or for the proper administration of this Act.
(5) No
person shall disclose any information provided in a report under section 2 or
30 except
(a) where
the disclosure is made to an interested person to assist the interested person
in deciding whether an application should be made under this Act, or
(b) at
a proceeding under this Act.
(6) A person who contravenes this section is guilty
of an offence and liable to a fine of not more than $1000.
RSA 1980 cD‑32
s49;RSA 1980 c6(Supp) s25;1985 c21 s39;
1986 cD‑27.1 s13;1989 c10 s7
Protection re reports or
information
69 A person who makes a report or gives information
for the purpose of an application under this Act or to assist in deciding
whether an application should be made under this Act shall not acquire any
liability for making the report or giving the information if the person makes
the report or gives the information in good faith and has reasonable and
probable grounds for believing the report or information is true.
1985 c21 s40
Part 4
Trusteeship Without Court Order
and Appeal Panels
Division 1
Trusteeship Without Court Order
Certificate of
incapacity
70(1) When, after separate examinations of an adult
person who is resident for any period of time in a facility at the time the
examinations are made, 2 physicians are of the opinion that the person is
unable to make reasonable judgments with respect to all or any matters
pertaining to the person’s estate, they may issue a certificate of incapacity
in the form prescribed in the regulations.
(2) The
certificate of incapacity shall show
(a) the
names of the 2 physicians issuing it,
(b) the
date that each examination was made,
(c) the
facts on which each physician formed the physician’s opinion that the person
was unable to make reasonable judgments with respect to all or any matters
pertaining to the person’s estate, distinguishing the facts observed by the
physician from the facts communicated to the physician by others,
(d) the
date of issue, and
(e) the signatures of the persons issuing the
certificate.
RSA 1980 cD‑32 s50
Notification of issue of
certificate of incapacity
71 Immediately after a certificate of incapacity is
issued, the physicians who signed the certificate shall ensure that
(a) the
Public Trustee is notified,
(b) the
certificate of incapacity is mailed to the Public Trustee, and
(c) a
copy of the certificate of incapacity is mailed to
(i) the person who is the subject of the certificate, unless the
physicians are of the opinion that to do so would be harmful to the physical or
emotional health of the person, and
(ii) the person’s guardian or, if the person has
no guardian, the person’s nearest relative living in Canada.
RSA 1980 cD‑32
s51;1985 c21 s41
Resolution of conflicts
72(1) Subject to this section, on the issue of a
certificate of incapacity the Public Trustee becomes the trustee of the estate
of the person named in the certificate.
(2) A
certificate of incapacity is of no effect, and the Public Trustee does not
become trustee of the estate of the person named in the certificate, if at the
time the certificate is issued there exists an enduring power of attorney given
by the person named in the certificate.
(3) Notwithstanding that a certificate of
incapacity is of no effect, if a trusteeship order or enduring power of
attorney exists with respect to a person named in a certificate of incapacity,
any action taken or thing done by the Public Trustee in the belief that no
trusteeship order or enduring power of attorney was in existence with respect
to the estate of the person is as valid as if the action taken or thing done
had been taken or done by the Public Trustee pursuant to a certificate of
incapacity and as if no trusteeship order or enduring power of attorney had
been in effect with respect to the estate of that person.
RSA 1980 cD‑32
s52;1985 c21 s42;1991 cP‑13.5 s17
Review of certificate of
incapacity
73(1) The Public Trustee shall, at least once every 2
years, apply to an appeal panel to have each certificate of incapacity reviewed
by the appeal panel.
(2) The
chair of the appeal panel shall, at least 10 days before the review is to be
heard by the appeal panel, give notice of the date, time, place and purpose of
the hearing to
(a) the
person named in the certificate of incapacity to be reviewed unless, in the
opinion of the chair, the person cannot, after reasonable attempts, be located,
(b) the
person’s guardian or, if the person has no guardian, the person’s nearest
relative living in Canada,
(c) the
Public Trustee,
(d) if
the person is a resident of an institution, the person in charge of the
institution, and
(e) the
Public Guardian if the Public Guardian is not served pursuant to clause (b).
(3) After
hearing the application for review of a certificate of incapacity, an appeal
panel, if it is satisfied that the person in respect of whom the application is
made is unable to make reasonable judgments with respect to matters relating to
all or any part of the person’s estate and is in need of a trustee, may order
that
(a) the
certificate of incapacity is to continue in effect with respect to all of the
estate of the person named in it, or
(b) the
certificate of incapacity is only to apply to the part of the estate named in
the order subject to any conditions or requirements an appeal panel considers
appropriate,
and shall specify the
time within which the certificate of incapacity is to be reviewed again by an
appeal panel, which must not be longer than 2 years from the date of review,
unless before that time the certificate of incapacity is terminated pursuant to
this Act.
(4) If
the appeal panel is satisfied that
(a) the
person who is the subject of a certificate of incapacity is able to make
reasonable judgments with respect to matters pertaining to the person’s estate,
or
(b) the
certificate of incapacity does not result in substantial benefit to the person
who is the subject of the certificate and termination of the certificate of
incapacity would not prejudice the interest of the person who is the subject of
the certificate,
the appeal panel may
issue an order terminating the certificate of incapacity.
(5) The persons served under subsection (2) shall
be notified by the chair of the appeal panel of the order made under this
section.
RSA 1980 cD‑32
s53;RSA 1980 c6(Supp) ss26,30;1985 c21 s43;
1996 c13 s27
Termination of
certificate of incapacity
74(1) When, after separate examinations by each of
them, 2 physicians are of the opinion that a person who is the subject of a
certificate of incapacity is able to make reasonable judgments with respect to
matters pertaining to the person’s estate, they may issue an order terminating
the certificate of incapacity.
(2) The
order terminating the certificate of incapacity shall show
(a) the
names of the 2 physicians issuing it,
(b) the
date that each examination was made,
(c) the
facts on which each physician formed the physician’s opinion that the person
was able to make reasonable judgments with respect to the person’s estate,
distinguishing the facts observed by the physician from the facts communicated
to the physician by others,
(d) the
date of issue, and
(e) the signatures of the persons issuing the
order.
RSA 1980 cD‑32 s54
Notice of termination of
certificate of incapacity
75 Immediately after an order terminating a
certificate of incapacity is issued pursuant to section 74, the physicians who
signed the order shall ensure that
(a) the
Public Trustee is notified,
(b) the
order is mailed to the Public Trustee, and
(c) a copy of the order is mailed to the person
and the person’s guardian or, if the person has no guardian, the person’s
nearest relative living in Canada.
RSA 1980 cD‑32
s55;1985 c21 s44
Termination of
trusteeship of Public Trustee
76(1) On
(a) notification
of an order of the Court terminating a certificate of incapacity,
(b) notification
of a trusteeship order, or
(c) receipt
of an order terminating, varying or amending a certificate of incapacity
pursuant to section 73 or 74,
the Public Trustee
ceases to be the trustee of the estate or that part of the estate specified by
an appeal panel of the person named in the certificate of incapacity and shall
account to that person for the estate or that part of the estate formerly under
the Public Trustee’s trusteeship.
(2) If the Public Trustee does not provide an
accounting under subsection (1) to the satisfaction of the person named in the
certificate of incapacity, that person may apply by notice of motion to the
Court for an order requiring the Public Trustee to bring in and pass the
accounts relating to the estate or that part of the estate formerly under the
Public Trustee’s trusteeship.
RSA 1980 cD‑32
s56;1985 c21 s45
Duration of certificate
of incapacity
77 A certificate of incapacity remains in effect
until
(a) a
trusteeship order is made by the Court,
(b) it
is terminated by an appeal panel,
(c) it
is terminated by an order of the Court, or
(d) it is terminated pursuant to section 74.
RSA 1980 cD‑32
s57;1985 c21 s46
Division 2
Rights of Persons in Respect of Whom
a Certificate of Incapacity is Issued
Written statement of
certificate of incapacity
78(1) On receipt by the Public Trustee of a
certificate of incapacity, the Public Trustee shall give a written statement to
(a) the
person in respect of whom the certificate of incapacity is issued, and
(b) the
guardian of the person in respect of whom the certificate of incapacity is
issued or, if the person has no guardian, the person’s nearest relative living
in Canada,
containing the
information specified in subsection (2).
(2) The
written statement referred to in subsection (1) shall contain the following
information:
(a) a
statement to the effect that a certificate of incapacity has been issued;
(b) an
explanation of the effect of the certificate of incapacity;
(c) a
statement explaining that the certificate of incapacity has no effect if there
exists an enduring power of attorney given by the person named in the
certificate prior to the issuing of the certificate, but that the Public
Trustee may manage the estate until notified of the enduring power of attorney;
(d) a statement as to the right of the person in
respect of whom the certificate is issued to appeal to an appeal panel for
termination of the certificate of incapacity.
RSA 1980 cD‑32
s58;1985 c21 s47;1991 cP‑13.5 s17
Division 3
Appeal Panels
Appeal panels
79(1) The Minister shall establish one or more appeal
panels for the purpose of hearing and considering applications from persons in
respect of whom a certificate of incapacity has been issued.
(2) Each
appeal panel shall be appointed by the Minister and composed of
(a) 2
physicians,
(b) a
solicitor who shall be chair, and
(c) a
person representative of the general public.
(3) The
Minister may designate a vice‑chair of the appeal panel and may appoint
one or more alternate members in accordance with subsection (2) and when for
any reason a member of an appeal panel cannot act the member shall be replaced
by an appropriate alternate member who shall act until the hearing is complete,
and when so acting, an alternate member is a member for all purposes.
(4) The Minister may periodically review the
appointment of the members and alternate members to appeal panels and make any
changes the Minister considers advisable.
RSA 1980 cD‑32 s59
Quorum and decisions of
appeal panels
80(1) A quorum for an appeal panel is 3 members or
alternate members appointed pursuant to section 79.
(2) Each
member of the appeal panel is entitled to one vote.
(3) A decision of a majority of the members is the
decision of the appeal panel.
RSA 1980 cD‑32 s60
Persons ineligible for
appeal panel
81(1) No person who is actively serving as a member
of the staff of a facility is eligible to sit as a member or alternate member
of an appeal panel when the panel is considering an application from a person
in respect of whom a certificate of incapacity has been issued and who is or
was a resident of the facility with which that member of the staff of a
facility is connected.
(2) No
person who is
(a) related
by blood or marriage or by virtue of an adult interdependent relationship to a
person applying to an appeal panel,
(b) a
person who is treating or who has treated a person applying to an appeal panel,
or
(c) a
solicitor who is acting or who has acted for a person applying to an appeal
panel,
is eligible to be
appointed as or to sit as a member or alternate member of an appeal panel for
an application by that person.
(3) No person who issues a certificate of
incapacity is eligible to be appointed as or to sit as a member or alternate
member of an appeal panel for an application by the person who is the subject
of the certificate of incapacity.
RSA 2000 cD‑11
s81;2002 cA‑4.5 s30
Duties of appeal panel
82(1) An appeal panel shall
(a) hear
and consider appeals in accordance with this Act and the regulations, and
(b) review
compulsory care orders issued under section 11
(i) on the application under section 18(2)(b) of the person in charge
of a place of care, and
(ii) at intervals of 12 months after the issue of the orders until the
orders expire or are cancelled or terminated
and for those purposes
the members of the appeal panel have all the powers of a commissioner appointed
under the Public Inquiries Act.
(2) If
an appeal panel that reviews a compulsory care order under subsection (1)(b) is
of the opinion that it is no longer in the best interests of the dependent
adult who is the subject of the order that the dependent adult be confined in a
place of care, the appeal panel shall direct the Public Guardian to apply to
the Court for a review of the compulsory care order in accordance with section
14.
(3) The Minister shall provide secretarial, legal,
consultative and other assistance to each appeal panel as may be required.
RSA 1980 cD‑32
s62;RSA 1980 c6(Supp) s27
Division 4
Appeals from Certificate of
Incapacity to Appeal Panel
Appeal for cancellation
of certificate of incapacity
83(1) A person in respect of whom a certificate of
incapacity is issued may appeal to an appeal panel for termination of the
certificate of incapacity by sending notice of appeal to the chair of the appropriate
appeal panel in the form prescribed in the regulations.
(2) An
appeal for the termination of a certificate of incapacity may be made by the
person in respect of whom it is issued or an interested person on the person’s
behalf.
(3) After
the first appeal to an appeal panel, the persons referred to in subsection (2)
may not make any further appeal for termination of the certificate of
incapacity until the expiration of 6 months following the decision of an appeal
panel but the Public Trustee or the Public Guardian may appeal at any time.
(4) When an appeal has been made to an appeal panel
by a person, no other appeal shall be made by that person until the appeal
panel has disposed of the appeal.
RSA 1980 cD‑32 s63
Notice of appeal
84(1) On receipt of an appeal under section 83, the
chair of an appeal panel shall give notice to
(a) the
applicant and any person acting on the applicant’s behalf,
(b) the
guardian of the applicant or if there is no guardian, the nearest relative of
the applicant living in Canada and any other person that the chair considers
may be affected by the application and should be notified,
(c) the
Public Trustee, and
(d) the
Public Guardian if the Public Guardian is not served pursuant to clause (b),
of the date, time and
place of the hearing.
(2) As soon as it is able to do so, the appeal
panel shall carry out whatever investigation and hearing it considers necessary
and may invite the applicant and any other person to testify or produce
evidence at the hearing.
RSA 1980 cD‑32 s64
Proceedings of appeal
panel
85(1) All proceedings of an appeal panel shall be
conducted in private and, subject to subsection (2), no person has a right to
be present without the prior consent of the chair.
(2) The
applicant and the applicant’s representative and those persons served pursuant
to section 84 have the right to be personally present during the presentation
of any evidence to the appeal panel, but if in the opinion of the appeal panel
there may be an adverse effect on the applicant’s health by the applicant’s
presence, the applicant may be excluded, but in that event the appeal panel
shall appoint a person to act on the applicant’s behalf if the applicant does
not already have a representative.
(3) The
applicant or person acting on the applicant’s behalf has the right of cross‑examination.
(4) Except
as permitted by the chair and except where the report is published by the
applicant or the applicant’s representative, no person shall publish any report
of a hearing, investigation or deliberation by an appeal panel or the names of
any persons concerned with those proceedings.
(5) The chair of an appeal panel may adjourn a
hearing for any period up to 21 days, and with the consent of the Minister for
a longer period, for any purpose the chair considers necessary.
RSA 1980 cD‑32 s65
Decision of appeal panel
86(1) Within 28 days after receipt of an appeal by
the chair of an appeal panel under section 83 or any longer period that the
Minister allows, the appeal panel shall hear and consider the appeal.
(2) An
appeal panel may, in the same manner as it comes to a decision under section
73, make any of the orders specified in section 73.
(3) If
an appeal panel terminates a certificate of incapacity, the chair of the appeal
panel shall immediately notify the Public Trustee.
(4) Within
7 days after the date of its decision, the chair of the appeal panel shall send
a written report of the decision to the same persons who were served pursuant
to section 84(1) and any other person that the chair considers should be
notified.
(5) When
the appeal panel refuses to cancel a certificate of incapacity, the written
report shall contain a statement of the right of the applicant to appeal the
decision to the Court under section 87.
(6) An
appeal panel may order that the costs of any application or report made to it
under this Act be paid by all or any of the following:
(a) the
Crown in right of Alberta;
(b) the
person making the application, where it is satisfied that it would not be a
hardship to do so;
(c) the
person in respect of whom the application is made, where it is satisfied that
it would not be a hardship to do so;
(d) the estate of the dependent adult, where it
is satisfied that it would not be a hardship to do so.
RSA 1980 cD‑32
s66;1985 c21 s48
Part 5
Appeal, Regulations
Appeal to Court
87(1) Within 21 days from the making of an order by
an appeal panel, or any further time the Court may permit, any person in
respect of whom a certificate of incapacity is issued or any interested person
on that person’s behalf may appeal to the Court by way of originating notice.
(2) The
originating notice shall be served on
(a) any
guardian and trustee,
(b) the
Public Trustee and the Public Guardian if they are not served pursuant to
clause (a),
(c) if
the person in respect of whom the order is made is a resident of an
institution, the person in charge of the institution, and
(d) any
other persons a judge of the Court may direct,
not less than 15 days
before the motion is returnable and the practice and procedure of the Court
pertaining to applications by originating notice apply, so far as applicable,
to an application under this section, except as otherwise provided by this
section.
(3) The
notice of appeal shall be supported by an affidavit of the applicant setting
out fully all the facts in support of the applicant’s appeal.
(4) In
addition to the evidence adduced by the applicant, the Court may direct any
further evidence to be given that it considers necessary.
(5) The Court may reverse, confirm or vary the
order of the appeal panel or make any other order it considers just.
RSA 1980 cD‑32
s67;RSA 1980 c6(Supp) s30;1985 c21 s49
Appeal to Court of
Appeal
88(1) Subject to subsection (2), an appeal on a
question of law by a dependent adult or any interested person on the dependent
adult’s behalf lies to the Court of Appeal in respect of any compulsory care
order, guardianship order or trusteeship order by the Court.
(2) The
notice of appeal shall be served on
(a) any
guardian and trustee,
(b) any
attorney under an enduring power of attorney given by the person in respect of
whom the order is made,
(c) if
the person has made a personal directive, the agent, if any, designated in the
personal directive if the agent is not the guardian of the dependent adult or a
person otherwise served pursuant to this subsection,
(d) the
Public Trustee and the Public Guardian if they are not served pursuant to
clause (a),
(e) if
the person in respect of whom the order is made is a resident of an institution,
the person in charge of the institution, and
(f) any
other persons a judge of the Court of Appeal may direct,
within the time prescribed by the Alberta Rules of Court for service of a notice of appeal in an
appeal to the Court of Appeal, and the Alberta
Rules of Court regarding appeals to the Court of Appeal govern appeals
under this section.
RSA 1980 cD‑32
s68;RSA 1980 c6(Supp) ss28,30;1991 cP‑13.5 s17;
1996 cP‑4.03 s35
Regulations
89(1) The Lieutenant Governor in Council may make
regulations
(a) governing
appeals to appeal panels and the review of compulsory care orders by appeal
panels and proceedings in connection with them and with respect to hearings,
consideration and investigations of appeal panels and the review of compulsory
care orders by appeal panels and matters incidental to them and consequential
on them;
(b) governing
the methods by which information relevant to an application may be obtained by
or furnished to an appeal panel and concerning visits and interviews of
applicants in private;
(c) for
making available to any applicant copies of any documents obtained by or
furnished to an appeal panel in connection with the application and a statement
of the substance of any oral information so obtained or furnished except when
the appeal panel considers it undesirable in the interests of the applicant, or
for other special reasons, that this be done;
(d) prescribing
a schedule of costs payable in respect of any application made to an appeal
panel or report prepared for the purposes of the panel and for any other matter
connected with the hearings and proceedings of appeal panels.
(2) The
Lieutenant Governor in Council may make regulations
(a) prescribing
forms necessary for the purposes of this Act and the regulations;
(b) designating
places as facilities for the purposes of this Act and the regulations;
(c) designating
establishments or classes of establishments as institutions for the purposes of
this Act and the regulations;
(d) designating
the person in charge of a facility for the purposes of this Act and the
regulations;
(e) prescribing
the fair market value of personal property for the purpose of section 39(i);
(f) approving
jurisdictions outside Canada for the purposes of section 66;
(g) prescribing
the remuneration and travelling and living expenses payable to the chair and
other members of appeal panels;
(h) designating
the places of care in which dependent adults may be confined pursuant to a
compulsory care order or a compulsory care certificate;
(i) governing
the procedure and criteria to be used in determining in which place of care a
dependent adult is to be confined pursuant to a compulsory care order;
(j) governing
procedures respecting applications under this Act;
(k) respecting
the awarding of costs against the Crown in right of Alberta;
(l) respecting
the manner of service of documents;
(m) respecting the investing and depositing of
money for the purpose of section 39(b).
RSA 2000 cD‑11
s89;2006 c9 s8
