Frequently Asked Questions
On this page:
- What is guardianship?
- Who is eligible for guardianship?
- What is a capacity assessment and how are they completed?
- What is a health care or personal care decision?
- How do I determine if I should make a referral for guardianship?
- What if the adult has barriers to communication?
- What if the adult cannot make decisions independently, but can do so with support?
- What if the adult has created a personal directive?
- What does the Court consider when deciding whether to appoint a guardian?
- Who can be a guardian?
- What is the role of the Public Guardian?
- How do we select a proposed private guardian when the adult has more than one loved one?
- What does a guardian do?
- What does an alternate guardian do?
- How does a guardian make decisions for an adult? What are the guardian’s duties?
- What is a guardianship review?
- Am I ready to be a guardian?
- Who can assist with financial decisions?
- Who can refer an adult for guardianship?
- What will happen after I submit a guardianship referral package?
- Where can I find the Guardianship Referral Package?
- How long does the guardianship application process take?
- Is there a cost associated with guardianship application?
- Can I make application for guardianship for my family member without going through the Office of the Public Guardian?
- Who can I contact if I need more information?
What is guardianship?
The NWT’s Guardianship and Trusteeship Act establishes a legal process to appoint a decision maker for those who do not have the capacity to make health care and personal care decisions on their own.
A guardianship order is a legal court order which gives an individual (the guardian) the legal authority and duty to make, or assist in making, decisions about personal or health care matters on behalf of another adult. Guardianship orders are granted during a guardianship hearing in court.
If the adult’s family member or friend is appointed as guardian, this is known as private guardianship. If no family member or friend is able or willing to be a guardian, the Public Guardian may be appointed. This is known at public guardianship.
A guardianship order must always be an intervention of last resort. A guardianship order cannot be granted if there is an alternative course of action that is less restrictive and will have comparable benefits.
Who is eligible for guardianship?
A judge may grant a guardianship order for an adult who is:
- 18 years of age or older;
- Not able to, independently or with help, understand information relevant to personal or health care decisions;
- Not able to, independently or with help, appreciate the consequences of personal or health care decision or lack of such a decision.
The guardianship order must also be in the adult’s best interests and there must be no other course of action that is less restrictive and could meet the adult’s needs.
What is a capacity assessment and how are they completed?
Capacity assessments are used by the Court to determine whether there is a need for guardianship and within what areas of decision making an adult may need help. Upon receiving a guardianship referral, the Office of the Public Guardian will complete an initial screen of the information received and then refer the adult for capacity assessment if there are signs that a guardianship order may be appropriate and beneficial.
Capacity assessments are typically completed by a psychologist, neuro-psychologist or physician. In some cases, the Public Guardian may assign a nurse the responsibility to complete the capacity assessment. During a capacity assessment, the assessor will meet with the adult and have a conversation about aspects of the adult’s life, which may include their health care, nutrition, clothing, shelter, hygiene, or other matters. After the assessment, and upon reviewing other information provided by family or health care providers, the assessor will write a report. This is provided to the Office of the Public Guardian. It will be made available to the client and his/her family and will also be reviewed by the Court during a guardianship hearing.
What is a health care or personal care decision?
Under the Guardianship and Trusteeship Act, the Court, in making a guardianship order, must specify which decisions a guardian can make based on the adult’s unique needs and circumstances.”. These may be related to any of the following personal or health care matters:
- Consent to health care;
- Where the adult is to live and with whom;
- With whom the adult can associate;
- Participation in social activities;
- Participation in employment activities;
- Participation in educational, vocational, or other training opportunities;
- Diet, dress and other day-to-day decisions;
- Consent to the withholding of or the withdrawal of life support;
- Any other matter the Court considers necessary
How do I determine if I should make a referral for guardianship?
Making a referral for guardianship is a serious step that should be given careful consideration. The following are some questions that you may consider when trying to decide whether to make a referral:
- What sort of decisions need to be made by the adult now or in the near future?
- Is the adult able to understand information that will help them to make a decision?
- Does the adult have difficulty understanding consequences of decisions that they have made?
- Does the adult understand what could happen if they do not make a decision?
- Are there alternatives to guardianship that are less intrusive and could mitigate the presenting concerns?
- Does the adult understand how they are impacted by health or mental health conditions with which they have been diagnosed?
- Is the adult having difficulty managing their health care needs or personal affairs?
- Is the adult’s difficulty in making decisions putting them at risk?
- Is the adult at risk of being taken advantage of if they do not have a guardian?
- How would the adult benefit from guardianship? Would the benefits outweigh any loss of autonomy they may experience?
It is important to consider that some people make decisions that are risky, eccentric, or very different from decisions that you would make. This does not mean that they are incapable of decision making.
If an adult is living at risk, you should give thought to whether the adult understands the risk, understands decisions that they could make to address the risk, and what could happen as a result of those decisions or failure to make a decision. When considering a guardianship referral, the adult’s process of decision making is more important than the decision that the adult chooses.
If you are unsure about whether an adult could be eligible for guardianship, you can contact the Office of the Public Guardian for advice.
What if the adult has barriers to communication?
The ability to communicate verbally does not determine capacity. Some people have barriers to verbal communication but are still capable of decision making. It is our responsibility to support adults in receiving information in a way that they can best understand it and in communicating their wishes and decisions.
What if the adult cannot make decisions independently, but can do so with support?
Some adults need assistance to make decisions. They may need information presented in a certain way, at a certain time of day or in a certain environment. They may rely on the advice of a supportive family member to make decisions. If an adult relies on support to make decisions, is accepting of support, and is not at risk, guardianship may not be necessary.
What if the adult has created a personal directive?
A personal directive is a legal document that a person can write in case they cannot make health care and personal care decisions if they lose capacity. Within this, a person can choose an agent to whom they give authority to make decisions on their behalf if they lose capacity. In this circumstance, an adult has an authorized decision maker and guardianship is not needed.
If the person named as agent in the personal directive is not willing to assume this role or if there is concern about whether the agent is acting appropriately in their role, a guardianship application may be an appropriate step.
Sometimes a personal directive doesn’t name an agent. It may only list instructions about the adult’s care. In some cases, these instructions do not speak to all the decisions that must be made for the adult. In these circumstances, it may be necessary to make application for guardianship so that a decision maker can be appointed.
What does the Court consider when deciding whether to appoint a guardian?
The Court may make an order appointing a guardian for an adult if the court is satisfied that the adult is in need of a guardian because the adult:
- does not have capacity to understand information relevant to making a decision or appreciate the reasonably foreseeable consequences of a decision or lack of such a decision;
- will substantially benefit from a guardianship order; and
- There is no alternative course of action that would be less restrictive and would provide comparable benefits.
Who can be a guardian?
Usually a close family member or friend is the best person to be named as guardian. This is known as private guardianship. According to the Guardianship and Trusteeship Act, the proposed private guardian must:
- Be 18 years of age or older;
- Be a resident of the Northwest Territories;
- Have had friendly personal contact with the adult in the previous 12 months;
- Have consented to act as a guardian;
- Not be in a position where his/her interests conflict with the interests of the adult;
- Be willing and able to make informed decisions on behalf of the adult, based on the adult’s values, beliefs, and best interests; and
- Be easily accessible to the adult.
What is the role of the Public Guardian?
The Public Guardian is appointed as guardian when an adult doesn’t have family or friends able or willing to act as guardian, when a guardian dies and there is no alternate willing or able to become guardian, or when the court is not satisfied that a proposed guardian meets the requirements under the Guardianship and Trusteeship Act. In these situations, the Public Guardian has the same authorities and responsibilities that a private guardian would.
Additionally, the Public Guardian has a range of other duties which includes supporting applications for guardianship, supporting applications for review and renewal of guardianship orders, and investigating concerns of guardians not acting appropriately in their role.
How do we select a proposed private guardian when the adult has more than one loved one?
When deciding who would be the most suitable proposed private guardian, first consider who meets the criteria listed above as is set out in the Guardianship and Trusteeship Act. Secondly, you may consider:
- In the past, has the adult expressed who they would like to represent them in the event of losing capacity?
- What are the adult’s current wishes in terms of selecting a guardian?
- Who is able and willing to maintain regular contact with the adult and his/her care providers?
- Who does the adult trust?
- Who has a close relationship with the adult?
- Who is able to make decisions with the adult’s wishes and best interests in mind?
The Guardianship and Trusteeship Act states that when appointing a guardian, the Court will give special consideration to the closeness of the family relationship, if any, between the proposed guardian and the adult as well as the wishes of the adult.
If there is more than one suitable proposed private guardian, one of them could be appointed as an alternative guardian.
What does a guardian do?
A guardian has the authority and duty to assist in decision making and to make decisions on behalf of the adult as needed. Each individual guardianship order states what authorities the guardian has. Depending on what the court orders, a guardian may make decisions related to health care, housing, participation in activities or other aspects of the adult’s personal or health matters.
Additionally, a guardian is an important key contact for the adult and his/her service providers. The guardian must monitor services received by the adult and advocate for services needed. The guardian must inform the Office of the Public Guardian if there is any change in the client’s ability to make decisions so that capacity can be re-assessed. If the guardianship order approaches expiry, the guardian must work closely with the Office of the Public Guardian to arrange renewal.
What does an alternate guardian do?
The alternate guardian takes over the guardian role if the guardian dies, is incapacitated or when authorized by the guardian in writing due to an illness or absence. The alternate guardian is named at the time that the court grants or renews a guardianship order. An alternate guardian must meet the same eligibility criteria as a guardian.
How does a guardian make decisions for an adult? What are the guardian’s duties?
The guardian must act in accordance with key principles that are set out in the Guardianship and Trusteeship Act:
- If the guardian knows of the wishes that were expressed by the adult when capable, the guardian must make decisions in accordance with those wishes when possible;
- The guardian must take into consideration the adult’s values and beliefs when capable and current wishes;
- The adult should be encouraged to participate in decision making to the best of his/her ability;
- The guardian must try to foster regular contact with the adult’s supportive family and friends;
- The guardian shall consult with supportive family, friends and care providers;
- The guardian must seek to foster the independence of the adult to the extent possible; and
- The guardian must always choose the least restrictive course of action that is available and appropriate.
What is a guardianship review?
During the guardianship hearing, the Court will decide the date when the order must be returned to the Court for a review. This is typically 5 years after the guardianship order was granted but may be sooner. The Court will review information and either amend, continue, vary, replace, or terminate the guardianship order. The Office of the Public Guardian can provide support and direction to private guardianship reviews or alternatively, families can contact their own legal counsel to arrange guardianship order renewal.
Am I ready to be a guardian?
Being appointed a guardian is an important responsibility. Guardians ensure the care and well-being of the persons they represent. As a guardian, you must have regular communication with the adult and his/her care providers. At times you may need to advocate for the services and best interests of the adult.
Additionally, you will need to make important decisions that impact the life of the adult that you are representing. You may find that some decisions are relatively simple while some are very complex. At times there may be conflict between the best interests of the adult you are representing and his/her family members or friends. You must be aware of these challenges and potential for conflict and be able to navigate these situations while acting in the best interests of the adult that you are representing.
Who can assist with financial decisions?
Trusteeship is an option for adults who are unable to, independently or with support, make decisions related to their finances or estate. It is possible to put forward a joint guardianship and trusteeship application.
For more information, contact The Public Trustee Office at 1-867-767-9252.
Who can refer an adult for guardianship?
Any family member, friend, or community based professional (Nurse, Social Worker, Teacher, Case Manager, etc.) can complete the guardianship referral package.
As a referral source, you will be asked to remain a key contact person for the Office of the Public Guardian throughout the guardianship application processes. You may be asked to gather additional information or to liaise between the Office of the Public Guardian, the adult and his/her family members.
What will happen after I submit a guardianship referral package?
After receiving the referral package, The Office of the Public Guardian will open a file and screen the referral to determine eligibility. If there is any missing information, missing documents, or if the adult presents as ineligible, the OPG will notify in writing.
If eligible, The Office of the Public Guardian will send a Consent and Authorization Form to the referral source which must be signed by the adult’s closest family members. This document provides consent for the proposed guardian to be appointed and for the Office of the Public Guardian to move forward with the application, including arranging a capacity assessment. If the adult lacks capacity in decision making in any given area, the OPG will then work with legal counsel to prepare and file an application for guardianship with the Court. A hearing will be scheduled and all required persons will be served court documents. The adult and proposed guardian have the right to attend the hearing if they choose, but they are not required to do so.
Where can I find the Guardianship Referral Package?
You can find the Guardianship Referral Package by visiting: https://www.hss.gov.nt.ca/en/services/office-public-guardian
If you need assistance completing the guardianship referral package, you are encouraged to contact a health and social services professional in your community.
How long does the guardianship application process take?
You can expect the guardianship application process to take a minimum of 5 months, but it may take longer. The best way for you to support a timely application process is to ensure that you provide the Office of the Public Guardian with all of the required information and documents.
Is there a cost associated with guardianship application?
The court may order that the costs associated with the guardianship application or capacity assessment be paid by the adult or the adult’s estate only if the court is satisfied that this would not be a hardship for the adult.
Can I make application for guardianship for my family member without going through the Office of the Public Guardian?
Yes, any interested person can apply to the court for a guardianship order. It is a complex, legal process and for this reason it is recommended that you work with a lawyer. Also, you will be required to privately arrange a capacity assessment. You will be responsible for all costs and fees associated with the guardianship application.
Who can I contact if I need more information?
Office of the Public Guardian
7th floor, Centre Square Towers
5022-49th Street
P.O. Box 1320
Yellowknife NT - X1A 2L9
Phone: 867-767-9155 Ex. 49460
Email: OfficePublicGuardian@gov.nt.ca