dated by the doctor). You may not receive the form back immediately, as the doctor may wish to run some tests, see the dependent adult a second time, review the dependent adult’s medical history, or consult with another doctor. Once the medical form is returned to you, it will become part of your signed and sworn application to the court.
In the areas of Canada in which there is no specific form and the medical evidence must be supplied by way of affidavit, the process is slightly more complicated. All evidence given to the judge must be sworn to be true, either by you or by the doctor. One of two things can happen. The first is that the doctor will see the dependent adult and provide you with a written report. You will then prepare an affidavit for the doctor to sign, in which the doctor will swear that he or she prepared the report and believes it to be accurate. The report will be Exhibit ìAî to the affidavit. This affidavit will form part of the court application. Because the affidavit is evidence, the doctor will have to swear it in front of a Commissioner for Oaths, so again, you may have to come back at a later date once the doctor has had a chance to do that.
The second possibility is that the doctor will provide you not with a separate report but with an affidavit already sworn before a Commissioner for Oaths. You are more likely to have this happen if you prepare the affidavit ahead of time and take it with you when you take the dependent adult to the doctor. You can then leave the affidavit with the doctor, thereby eliminating one step from the procedure.
3
Alternatives to Applying for Court-Ordered Guardianship and Trusteeship
1. Why You Should Consider Alternatives
Before deciding to make an application to the court to be appointed as guardian and/or trustee, it is worthwhile to take the time to consider whether there are any alternatives available. Each elderly person’s situation and needs are unique, and it may be the case that those needs can be met by measures that are less expensive and less intrusive than having a guardian and trustee appointed. For example, a senior living alone might have no trouble doing his or her banking and looking after investment transactions but might have physical limitations. It might be possible to avoid the expense and trouble of having a guardian appointed for this person if someone could accompany him or her to the bank on a regular basis. Being appointed as a guardian and trustee should be a last resort.
Alternatives should be explored for two reasons. The first reason is that guardianship and trusteeship can be invasive to an individual dependent adult. The second reason is that court applications can be expensive and may deplete a modest estate unnecessarily.
In many jurisdictions in Canada, the law expressly says that no guardian or trustee can be appointed if there are alternatives available. In Saskatchewan, for example, if you are applying to be a guardian or trustee of a dependent adult, you will be required to first show the court that other, less intrusive methods of assisting the dependent adult have been tried or at least seriously considered. In the Northwest Territories, the court will not make a trusteeship order unless it is satisfied that there is no alternative available that is less restrictive of the decision-making rights of the dependent adult. Other provinces have similar wording. Not all jurisdictions have this kind of requirement stated right in the law itself, but the concept of using the courts as a last resort is well entrenched.
A number of alternatives are described in this chapter. Some of them address guardianship issues and some address trusteeship issues. Not every alternative will suit every person. If one of the alternatives (or a combination of them) seems like a solution for a particular elderly relative about whom you are concerned, it is worthwhile to explore that alternative with family members, doctors, and caregivers who care about your relative.
2. Informal Trusteeship
If your elderly relative is receiving benefits from the federal Government, including Old Age Security, Canada Pension Plan, Guaranteed Income Supplement, Spouse’s Allowance, or Survivor’s Allowance, it may be possible for a family member to apply directly to the government to become an informal trustee. This is different from a court-ordered trusteeship in many ways, the main difference being that the informal trustee only has authority to deal with the government benefits. This means, for example, that an informal trustee would have the power to deposit the Old Age Security or Canada Pension Plan cheques and use the money to pay bills, but would not have the power to deal with any other property owned by the dependent adult, such as the dependent adult’s house, investments, or money inherited under an estate. In other words, this kind of informal trusteeship is really only meant for people who do not have other assets besides the government benefits.
However, if the only asset needing attention at the moment is a government pension or benefit, then this option is definitely worth considering. No court application is involved in this process, which means that there are no court fees, no service of documents on other people, and fewer delays. Application for informal trusteeship is made through the Government of Canada, Income Security Programs. They have offices in all provinces and territories as well as a toll-free number (1-800-277-9914).
In order to make an application for informal trusteeship, two forms must be filled out and provided to the government. The first is the Certificate of Incapability, a form that must be completed and signed by the dependent adult’s doctor to provide evidence that the person really does require assistance. The second is the Undertaking to Administer Benefits Under the Old Age Security Act and/or the Canada Pension Plan Act. These forms, as well as assistance in completing them, can be obtained by calling the toll-free number mentioned above. By calling this number, you can also, if you wish, discuss whether informal trusteeship is the right choice for you and your elderly relative.
You can also complete the forms online by accessing the Government of Canada website. These forms are in PDF format so that you complete them by typing the information in the fields provided, and then print the completed forms and mail them to the address provided on the website.
A similar informal trusteeship is also available through Veterans Affairs Canada for seniors who are receiving benefits from that department. In addition, provincial aid programs for individuals with mental or physical disabilities that prevent them from working also allow and encourage informal trusteeship. If your elderly relative is receiving disability benefits of any kind from the government, you can inquire about informal trusteeship to the program that pays the benefits.
If you become an informal trustee for your relative, you will have the legal authority to collect the dependent adult’s monthly cheque, deposit the cheque in the bank, and use the money to pay the dependent adult’s bills. It does not give you the authority to use any of the dependent adult’s money for yourself or to pay yourself. Nor does it give you the authority to touch any of the dependent adult’s other money or property.
One of the advantages of informal trusteeship is the initial cost of becoming a trustee, which is significantly less because no application to the court is required. Another advantage is the simplicity and quickness of the application process. There is also the advantage that informal trustees are not required to make appearances in front of a judge to account for their trusteeship.
The disadvantage is that the scope of the informal trustee’s authority is limited only to the government benefit and not any other assets of the dependent adult. You should consider both the advantages and the disadvantages when determining whether this approach would work for you.
3. In-Home Support
If the issues facing your relative are largely due
