Preparing for the unexpected is a crucial aspect of legal and financial planning, yet it’s often overlooked until it’s too late. One such preparation is establishing a Power of Attorney (POA) before someone becomes mentally incapacitated. In Alberta, not having a POA in place can lead to complex legal challenges and emotional stress for families during already difficult times. This post will explore the consequences of lacking a POA at the time of mental incapacity and introduce the concept of a trusteeship application as a remedy. 

The Challenges Without a Power of Attorney 

A POA is a legal document that grants someone else the authority to make decisions on your behalf should you become unable to do so due to mental incapacity. Without this critical document in place, the control over financial and some healthcare decisions can become significantly complicated. Here are the main issues that arise: 

Lack of Immediate Decision-Making Authority: Family members or loved ones will not automatically have the legal right to make decisions for the incapacitated individual. This can lead to delays in financial management and healthcare treatment. 

Increased Emotional Stress: The uncertainty and inability to act promptly can heighten emotional distress for everyone involved. 

Potential for Conflict: Without a clear directive, disagreements may arise among family members about who should make decisions and what those decisions should be. 

What is a Trusteeship Application? 

In Alberta, when an individual is mentally incapacitated without a POA, a trusteeship application becomes necessary. This legal process involves applying to the court for the appointment of a trustee, who will then have the authority to make decisions on behalf of the incapacitated individual. The trusteeship application process is governed by the Adult Guardianship and Trusteeship Act (AGTA) in Alberta. 

Steps Involved in a Trusteeship Application 

Assessment of Capacity: A capacity assessment must be completed by a qualified health professional to determine the individual’s ability to make decisions. 

Application to the Court: The proposed trustee must apply to the court, providing the necessary documentation, including the capacity assessment and a plan for the management of the individual’s affairs. 

Notification: Close family members must be notified of the application, giving them an opportunity to object or support the application. 

Potential Court Hearing: In some circumstances, a hearing may have to occur as there may be a dispute on who shall be appointed as Trustee.  

A trusteeship application usually takes 6 to 8 months from the time paperwork is submitted for the court to render a decision. 

The Role of a Trustee 

Once appointed, a trustee has the legal authority to manage the financial affairs of the incapacitated individual. This includes paying bills, managing investments, and ensuring that the individual’s financial needs are met. The trustee is also responsible for making decisions that are in the best interests of the incapacitated person, following any known wishes or directives. 

Conclusion 

The absence of a Power of Attorney can significantly complicate matters during an already challenging time of mental incapacity. It underscores the importance of proactive legal planning. A trusteeship application is a vital process in Alberta for ensuring that an incapacitated individual’s affairs are managed responsibly and in their best interest, but it is a process that can be avoided with proper foresight and planning. 

To safeguard your and your loved ones’ futures, consider establishing a Power of Attorney as part of your legal planning. For guidance on creating a POA or navigating a trusteeship application in Alberta, Jaswal Law is here to help. Our expertise ensures that you and your family are prepared for any eventuality, providing peace of mind and legal protection. Visit our website at www.jaswal-law.ca or contact us at info@jaswal-law.ca for more information. 

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. For personalized advice regarding your situation, please consult with a legal professional.