Report From “Giving Voice”

By Audrey Jun (2L)

On November 9, the university hosted Giving Voice, a one-day forum on changes to Alberta’s mental health legislation. Having spent the past summer working for Nidus, a non-profit that provides public legal education on personal planning in case of incapability, I was excited to attend the seminar on The Mental Health Act and the Adult Guardianship and Trustee Act. This half-hour seminar was moderated by Heather Loughlin, Clinical Counsel for Alberta Health Services. Sandra Harrison (Alberta Mental Health Patient Advocate) and Brenda Lee Doyle (Provincial Director, Office of the Public Guardian) presented. 

Of primary interest to me was the Adult Guardianship and Trusteeship Act (AGTA) which recently came into force on October 30, 2009, replacing the Dependent Adults Act. The AGTA applies to adults who are no longer able to make personal or financial decisions.

The AGTA is built on four principles:
1. Capacity is presumed until it is determined to the contrary;
2. The method of communication is irrelevant to determination of capacity;
3. Autonomy is to be maintained through least intrusive and least restrictive measures; and
4. Decisions are to be based on best interests and how the adult would have made the decision if capable.

A key concept of the new legislation is its view of capacity as a continuum. Instead of a capable/incapable dichotomy, the legislation conceives of gradients of capability. It subsequently provides for multiple decision-making options, determined on every level of capacity and governed by the four guiding principles.

At the very far end of the spectrum, the adult is capable and can make his/her own decisions. Supported Decision-Making Authorizations allow a person can authorize up to three people to assist him/her in decision making. Co-Decision-Making is another alternative to guardianship that applies if an adult’s ability to make personal decisions is significantly impaired but he or she is still capable of making decisions with support. Specific Decision-Making is applicable when an adult lacks a guardian or personal directive and is not capable of making a decision. A health care provider may choose a relative to act as a specific decision maker for health care and temporary admission/discharge from a residential facility. Temporary Guardianship and Trusteeship and Guardianship, Trusteeship and Protection are found at the other end of the spectrum. The court-appointed guardian is legally responsible for making decisions on behalf of the adult who lacks capacity to make personal decisions. Trusteeship deals with financial decisions.

In addition, the AGTA Regulations provide a standardized method of assessing capacity. The Act allows trained professionals to assess an adult’s capacity for purposes of court order applications. This assessment process focuses on the cognitive and functional abilities of the adult, targeting the type of decisions the adult will need to make, and identifies the level of assistance required. Lastly, there is a complaint and investigative process available if a guardian, trustee or co-decision maker is failing to comply with the order or their duties. The AGTA identifies restorative actions and remedies to resolve concerns.

More information on the AGTA can be found at: http://www.seniors.gov.ab.ca/opg/guardianship