Dependent Adults

The law divides a person’s life into two categories: property and personal well being. Body and soul if you will.

When adults are not able to care for themselves, and have not made prior arrangements, the Court can designate them a Dependent Adult and appoint someone else to ensure they are properly cared for. The person appointed regarding property and financial affairs is called a Trustee. A Trustee has a legal title to the property, but must deal with it for the benefit of the Dependent Adult. The Court may also name a Guardian who can make decisions regarding the health, personal welfare and lifestyle of the Dependent Adult. In essence, the Trustee and the Guardian step into the shoes of the dependent Adult and make the decisions the Dependent Adult can no longer make. Commonly the Guardian and Trustee are the same person, but this is not necessarily the case.

The Court will only make such an order if the Judge is satisfied three conditions are met:

1. The person is unable to make rational decisions themselves;

2. It will be in their best interests to have an order granted; and

3. The proposed Guardian and/or Trustee is a suitable person.

Notice of the application must be given to the proposed Dependent Adult, as well as his or her nearest relative living in Canada, and the Offices of the Public Guardian and/or Public Trustee. If the proposed Dependent Adult is living in an Institution, the director must also be served.

The report of a Physician or Psychologist must accompany the application setting out the diagnosis, prospects of recovery, and stating why a Guardian or Trustee is necessary.

Once the Order is granted it must be reviewed periodically. When a Trusteeship is reviewed, the Trustee must account in detail to the Court, giving details of all income and expenditures since the Order was granted.

An Order may be reviewed at any time on the application of any interested person, including the Dependent Adult.

Costs of the application are usually paid from the assets of the Dependent Adult. If he or she has no assets, then the Public Guardian and Public Trustee’s offices may fund the applications.

If a person has granted an Enduring Power of Attorney then a Trustee is unnecessary. A Personal Directive will take the place of a Guardianship Order. Of course, both these must be in place before the capacity is lost.

Whatever mechanism is put in place to allow one person to act on behalf of another, there arises a Fiduciary Relationship. This requires them to act in the utmost good faith and avoid even the appearance of conflict of interest. All actions are to be done strictly in the best interests of the other, and does not include doing things ‘that Grandma would have wanted’.