Protect Your Elderly Parents. Lynne Butler
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• A guardian shall consult from time to time with the dependent adult’s supportive friends and family as well as the dependent adult’s caregivers.
• A guardian shall foster the dependent adult’s independence as much as possible.
Guardian is the term used in most Canadian provinces and territories, but some provinces call a court-appointed guardian by a different name. See Table 2 for the names used in each province and territory.
Table 2: Court-Appointed GuardianNames by Province and Territory
Chapters 5 and 6 will tell you more about what is involved in being a guardian.
1.2 Trusteeship
A trustee makes decisions about money, real estate, and personal property. Often there must be cooperation between the guardian and trustee if they are different people, such as the case in which a dependent adult is moved from his or her residence to live in a long-term care facility. The guardian chooses which facility is appropriate. The trustee arranges for the paying of the facility’s bills. The trustee may also, depending on the situation, arrange to sell the dependent adult’s home, clear out and distribute the contents of the house, and invest the sale proceeds on behalf of the dependent adult. In this way, both guardianship and trusteeship roles are called upon.
In law, a trustee is anyone who holds onto or looks after money or property for someone else. If you are the trustee, you have control of the money or property, but you do not own it. As the trustee, you are not holding the money or property for your own benefit or for the benefit of your family or friends. You are not entitled to use it for anyone but the dependent adult and his or her dependants. You are holding on to the property and money and managing them on behalf of the dependent adult. You are called a trustee because you have been entrusted to be the caretaker of someone else’s property.
You should note that in legal documents, when the phrase money or property is used, the word property does not just mean real estate. This can sometimes be confusing, because when the word property is used in a non-law context, it usually means a house or land. When talking about trusteeship, property can mean both real estate (e.g., land, house, revenue property, summer cottage, or mineral lease) and personal property (e.g., money, vehicle, mobile home, jewellery, furniture, clothing, tools, machinery, livestock, inheritance, investments, mutual funds, bonds, collections, artwork, corporate shares, intellectual property, and almost anything else that is not real estate). Throughout this book, the word property will mean both real and personal property.
It is essential to note that being appointed as a trustee does not give you permission to do whatever you want with the dependent adult’s property. There is a widespread impression among Canadians that a trustee, once appointed by the court, can do whatever he or she wants with the money. Nothing could be further from the truth. As a trustee you must carefully read the court order that appoints you so that you know the limits of your authority. In addition, there are laws in place that put restrictions on what all trustees can do, even though those laws may not be mentioned on the specific court order. If you intentionally or carelessly cause a financial loss to a dependent adult, you can be held personally liable for that loss. Chapter 8 will tell you more about the restrictions placed on a trustee by law.
A trustee is a fiduciary. This word describes a legal relationship in which the trustee must always, without fail, act in the best interests of the dependent adult, even if doing so means he or she acts against his or her own interests. This is not always easy to understand or to do. By agreeing to act as trustee, the trustee is willingly taking on a role in which he or she always acts in a way that is intended to benefit the dependent adult.
Across Canada, the role of a court-appointed trustee is called by one of three names, those being trustee, committee, or guardian. Table 3 lists the names for each province and territory.
Table 3: Court-Appointed Trustee Names by Province and Territory
Regardless of what this role is called in your province or territory, this book will, for ease of reading, refer to someone appointed to look after another person’s property as a trustee. However, the forms on the CD use the correct term for each province and territory.
Chapters 7 through 10 will tell you more about trusteeship.
2. Provinces and Territory with Special Situations
Manitoba, Nova Scotia, and Nunavut have special situations when it comes to guardianship and trusteeship. The following sections explain the special situations you may encounter if you are dealing with the law in those provinces and territory.
2.1 Manitoba
In Manitoba, there are two laws that have to do with being appointed as the guardian and/or trustee of an adult. One is the Mental Health Act and the other is the Vulnerable Persons Living with a Disability Act. The procedures and forms are very different for the two laws and anyone who wants to make a court application to become someone’s guardian or trustee must figure out which procedure he or she is to follow.
The Vulnerable Persons Living with a Disability Act only applies to an adult who loses his or her capacity if that incapacity manifests itself before the adult reaches adulthood. This would not appear to be relevant to the people we are most concerned about in this book. Given that this book focuses on elderly people who are losing their capacity due to aging, it is highly unlikely that this act will apply. Therefore, residents of Manitoba will find that this book focuses only on applications that may be made under the Mental Health Act.
In the event that you are not sure which procedure applies to your situation, you may wish to discuss it with the very helpful and approachable staff of the Office of the Vulnerable Persons’ Commissioner in Winnipeg. Contact information is available on the CD.
2.2 Nova Scotia
In Nova Scotia, most applications for the appointment of guardians are made under the Incompetent Persons Act. However, Nova Scotia also has a second way of being appointed as the guardian of an adult person who has lost capacity, that being the Inebriate’s Guardianship Act. The procedure is the same. As may seem obvious, the latter act specifically refers to a loss of capacity that is brought around by a person’s habitual drunkenness and is not specifically related to aging. As the focus of this book is on incapacity due to aging, all of the forms and information in this book will refer to the Incompetent Persons Act only.
2.3 Nunavut
When Nunavut became Canada’s newest territory in 1999 by splitting off from the Northwest Territories, it retained some of the laws of the Northwest Territories and adopted them as their own. One of the laws of the Northwest Territories that still applies in Nunavut is the Guardianship and Trusteeship Act, which sets out the rules, procedures, and forms for the appointment of guardians and trustees for adults. Therefore, all of the information in this book that applies to the Northwest Territories also applies to Nunavut.
You will note that there are a few changes to the forms that are used for making your application. For example, you must refer to the Nunavut Court of Justice rather than the Northwest Territories court. These changes have already been made on the forms for Nunavut readers.
3. In the Best Interests of the Dependent Adult
There are not a lot of legal guidelines as to what does and does not constitute acting in the best interests of a dependent adult and it may not be easy for you to determine what is in the