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 best interests of your elderly relative. Obviously acting in his or her best interests cannot mean that you only do what the dependent adult wants, as some of the wishes expressed by a dependent adult may be unreasonable. After all, you would not be in the position of guardian and trustee in the first place if the dependent adult was fully capable of making all his or her own decisions.
For example, many elderly people are understandably distraught at the thought of leaving their homes and moving into long-term care facilities or at the need to give up driving their own vehicles. This is often seen by the dependent adult as more of a punishment than anything as it represents a severe loss of freedom, independence, and even identity. However, you, as the guardian, may have no choice but to take steps to move the dependent adult or to have his or her driver’s licence revoked if the dependent adult simply cannot manage safely on his or her own any longer. In a case like that, what the dependent adult wants and what is in his or her best interest are not the same.
The wishes and intentions of a dependent adult should always be taken into consideration whenever it is possible to do so. Not all dependent adults suffer from a problem so severe that they can have no input whatsoever into things such as selection of birthday gifts for grandchildren, plans for vacation, or whether they need to see a doctor. Where the dependent adult is able to offer input that is reasonable in the circumstances, it is in the best interest of the dependent adult for that input to be heard and acted upon. Remember that you, as a guardian and trustee, have agreed to act in the least restrictive manner possible and you should remain open to opinions expressed by the dependent adult.
A mistake that is frequently made by children who become guardians of their parents is to set up matters in a way that is convenient for themselves, regardless of whether it is enjoyable, comfortable, or agreeable for the parents. This can lead to neglect and even abuse. It is absolutely essential that you work with your elderly relative to try to determine his or her wishes and to work within them whenever possible.
In determining whether having a guardian or trustee appointed for your elderly relative is in the elderly relative’s best interests, consider the following questions:
• Can the elderly relative make all personal and financial decisions for himself or herself safely and happily right now?
• If so, how long is that situation likely to continue?
• How would the elderly relative’s life be improved in the short term and in the long term by having a guardian or trustee appointed?
• What risk is the elderly relative running by refusing decision-making help?
• Is there an urgent situation existing right now that must be addressed quickly?
• Are there any solutions available that are less intrusive than a court-appointed guardianship or trusteeship? (See Chapter 3 regarding alternatives.)
• Has the elderly relative ever made any suggestions or given any instructions about who he or she would like to live with or who he or she would like to have in charge of his or her affairs?
Chapter 2 may help you answer these questions.
2
Does Your Parent Need a Guardian or Trustee?
Loss of mental capacity in an adult will be diagnosed and documented by a doctor or psychologist if an application is going to be made to the court. However, in most cases, a dependent adult’s family members are the ones who first notice there is a problem such as memory loss or an inability to do things the elderly relative used to do. The family members are the ones who have the opportunity to observe their elderly relative on a regular basis and to notice when the relative is having problems living independently. The family members usually then take the relative to a doctor for a diagnosis.
It can be difficult to know when it is time to become involved as a guardian or trustee. The following two sections describe some common behavioural symptoms shown by elderly relatives who are experiencing some loss of capacity. The lists in the following sections are not intended to be medical advice that can replace a consultation with a doctor. They are merely lists of symptoms or problems that are frequently documented by medical reports that are used in guardianship and trusteeship applications. Please note that every individual is unique and may exhibit some, none, or all of these behaviours.
Please also keep in mind that there could be medical explanations other than lack of capacity for isolated symptoms and you should rely on a doctor for help with interpreting your relative’s specific situation. For example, sometimes a person giving inappropriate answers to questions is confused and forgetful and this might be a symptom of incapacity. However, it is also possible that the person may not be mentally incapable at all but is giving inappropriate answers simply because he or she is hard of hearing. If you believe that your elderly relative is exhibiting some of these behaviours and that they may point to a loss of capacity, the first step should be to ensure that your relative is under the care of a physician who can rule out other diagnoses.
1. Indications That Guardianship Might be Necessary
Your elderly parent might need a guardian to assist with personal- and health-care decisions if he or she —
• is unable to safely prepare meals for himself or herself, leaves pots and pans on the stove to boil dry, repeatedly scalds himself or herself with hot water, starts kitchen fires, or has problems remembering how to carry out other daily tasks that used to be familiar;
• becomes disoriented when he or she leaves home, forgets his or her address, or forgets how to get home;
• fails to recognize people he or she has known for a long time;
• is unable to maintain personal hygiene on his or her own (e.g., bathing, toileting, dental care, grooming) or is unaware that hygiene is a problem;
•
