Supporting Aging Parents: When Guardianship Becomes the Right Choice

As our parents age, many of us find ourselves stepping into unfamiliar and often challenging roles. We become caregivers, decision-makers, and advocates for their well-being. When age-related health issues begin to affect a parent’s ability to manage their personal affairs, families are sometimes faced with difficult questions. Chief among them: when is adult guardianship appropriate, and how do you begin the process in Alberta?

Understanding when guardianship becomes the right choice, and the legal implications that follow, is critical to ensuring the safety, dignity, and rights of an aging loved one.

What Is Adult Guardianship?

Adult guardianship is a legal arrangement in which a designated person (the guardian) is granted the authority to make personal, non-financial decisions on behalf of another adult who has been deemed incapable of making such decisions independently. This authority typically encompasses decisions related to healthcare, living arrangements, social activities, and other matters of personal welfare.

In Alberta, adult guardianship is governed by the Adult Guardianship and Trusteeship Act (AGTA). The legislation is designed to strike a balance between respecting an individual’s autonomy and ensuring their safety and well-being when they are no longer able to make informed decisions due to mental incapacity, cognitive decline, or certain medical conditions.

While guardianship focuses on personal decision-making, trusteeship (often applied for in parallel) relates to financial and property matters. Depending on the circumstances, an individual may require one or both forms of legal support.

Recognizing the Signs: When Is Guardianship Necessary?

Determining when guardianship is needed is rarely a straightforward task. Aging affects everyone differently, and mental or cognitive decline can manifest in a variety of ways. However, some common indicators may suggest that an aging parent is struggling to manage their affairs and could benefit from the support of a legally appointed guardian:

• Forgetting to take prescribed medications or attend medical appointments;
• Inability to understand or weigh the consequences of personal decisions;
• Making choices that place their health or safety at significant risk;
• Difficulty maintaining personal hygiene or managing day-to-day tasks;
• Signs of dementia or progressive cognitive decline; or
• Vulnerability to undue influence, manipulation, or abuse.

Before guardianship can be considered, Alberta law requires that the adult’s capacity be assessed. This is typically done through a Capacity Assessment, conducted by a qualified health professional, to evaluate the individual’s ability to understand and make informed decisions about their own care.

It’s important to note that not all instances of aging or forgetfulness warrant guardianship. The law recognizes that adults have the right to make decisions (even poor ones), so long as they have the mental capacity to do so. Guardianship is intended as a last resort, used only when less intrusive means of support are insufficient.

Applying for Adult Guardianship in Alberta

If your parent’s capacity has been assessed and the report confirms that they are unable to make decisions about their personal care, the next step is to apply for guardianship through the Office of the Public Guardian and Trustee (OPGT) and the Alberta Court of King’s Bench.

The process involves a court application, which includes:

• The completed Guardianship and Trusteeship Application forms;
• The Capacity Assessment report;
• A proposed guardianship plan, outlining how the guardian will support the adult’s personal needs; and
• Supporting documents, including consent forms, background checks, and notices to other interested parties.

If the application is uncontested, it may proceed in a relatively straightforward manner. However, if there is disagreement among family members or concerns about the proposed guardian, the matter may be scheduled for a court hearing. In all cases, the court will evaluate whether the proposed guardianship arrangement is in the best interest of the adult.

It is essential to consult an experienced guardianship lawyer to ensure the application is prepared correctly and to avoid unnecessary delays.

The Responsibilities of an Adult Guardian

Being appointed as a guardian carries significant legal and ethical responsibilities. Guardians are expected to act in the best interests of the adult, taking into account their values, beliefs, and past wishes wherever possible.

Some of the primary responsibilities of an adult guardian include:

• Making informed decisions about the adult’s health care and medical treatments;
• Deciding where the adult will live and under what circumstances (e.g., in-home care, assisted living, long-term care);
• Consenting to social, educational, or recreational activities; and
• Advocating for services and support that promote the adult’s well-being.

Guardians must also submit periodic reports to the OPGT detailing how they are carrying out their duties. They are accountable to the court and may be removed or replaced if they fail to act responsibly or abuse their authority.

Importantly, guardians do not have authority over financial matters unless they are also appointed as a trustee or have been granted financial powers under a separate legal instrument, such as an enduring power of attorney.

Emotional and Family Considerations

Navigating the decision to seek guardianship is emotionally complex. Adult children may struggle with guilt or fear that they are “taking over” their parent’s life. Siblings and extended family members may disagree about what is best, creating friction during an already stressful time.

Open, compassionate communication is key. Where possible, it’s helpful to involve your parent in conversations early, before capacity becomes significantly impaired, so their preferences and concerns can be heard. In situations where your parent resists guardianship despite declining capacity, it’s essential to balance respect for their autonomy with the need to protect their safety.

In high-conflict cases, mediation services or other forms of legal intervention may be necessary to resolve disputes and prevent the matter from escalating into a court case.

Alternatives to Guardianship: Exploring Less Restrictive Options

Before pursuing guardianship, families should explore whether less restrictive legal tools could meet their parent’s needs. In Alberta, some alternatives include:

Personal Directives

Personal directives allow an individual to name an agent to make personal decisions on their behalf in the event of incapacity. These must be signed while the individual is still capable of understanding.

Supported Decision-Making Authorizations

These enable a capable adult to appoint someone to help them understand information and communicate decisions without transferring legal authority.

Co-Decision-Making Orders

These orders typically involve a court appointment, where both the adult and the co-decision-maker must agree on decisions together.

These options may offer sufficient support in cases where the adult still retains some capacity or when the decision-making needs are relatively limited.

The Court’s Role in Protecting Vulnerable Adults

The court takes its role in adult guardianship matters very seriously. All decisions are guided by the overarching principle of using the least restrictive and most appropriate intervention. This means the court must consider whether the proposed guardianship is truly necessary, whether the guardian is an appropriate choice, and whether the plan respects the adult’s dignity and wishes.

The legal system in Alberta is structured to prevent abuse and promote accountability. However, these safeguards are most effective when families are informed, prepared, and supported by knowledgeable legal counsel.

Moving Forward with Confidence and Compassion

Deciding to pursue guardianship for an aging parent is never easy. It can be an emotional, time-consuming, and complex legal process. Yet in the right circumstances, it is also a powerful tool to ensure that a vulnerable loved one receives the care and protection they deserve.

If you’re concerned about a parent’s ability to manage their personal affairs, or you’re unsure about the legal options available to your family, speaking with a knowledgeable adult guardianship lawyer is an essential first step. Legal guidance can help you navigate the intricacies of Alberta’s guardianship laws with confidence and compassion.

DBB Law: Providing Compassionate Adult Guardianship Services in Calgary & Across Alberta

If you are worried about an aging parent’s safety, decision-making ability, or overall well-being, you do not have to navigate the guardianship process alone. At DBB Law, our family and guardianship lawyers can guide you through capacity assessments, court applications, and the legal supports available to protect your loved one. To discuss your family’s needs and take the next step to protect their well-being and rights, please contact us online or call 403-265-7777.