The Mental Health Act and the Adult Guardianship and Trusteeship Act: working together to protect the rights of Albertans.

• Author: Doyle, Brenda Lee

The Adult Guardianship and Trusteeship Act (AGTA) was proclaimed in force October 30, 2009, and replaced the 30-year-old Dependent Adults Act. (1) Proclamation of the recent amendments to the Mental Health Act (MHA) occurred in two phases--September 30, 2009, and January 1, 2010. (2) Both pieces of legislation are concerned with the rights and welfare of vulnerable adults, but the Acts vary in scope and focus. Changes to the MHA were considered as the AGTA was developed, so the two pieces of legislation are compatible. This article briefly outlines the general provisions regarding decision-making and some related issues under the two Acts.

The AGTA is relevant to all adult Albertans. It speaks to an individual's ability to make personal and/or financial decisions according to the decisional demands of their life circumstances. The Act is grounded in guiding principles focused on a presumption of capacity, autonomy and "best interests" decision making, which includes consideration of the wishes, values and beliefs the adult held while capable. (3) It addresses situations where capacity may be an issue for a number of reasons (e.g., developmental delay, brain injury, dementia). The AGTA and accompanying regulations standardize the capacity assessment process and establish clear guidelines for capacity assessors under the Act. (4) Trustees act as substitute decision makers for financial matters. Supporters or substitute decision makers may provide assistance or decision making for a range of personal matters. Personal matters are divided into eight groupings (e.g., health, social activities, employment). (5) The Act reflects current knowledge on mental capacity and the different levels of ability people have for making decisions. In keeping with the guiding principle of a least intrusive approach to decision making assistance or authority, a substitute decision maker will only be granted authority in those areas where it is absolutely necessary (e.g., a guardian may be appointed to make health care decisions, but the adult retains autonomy for all other decision making). The AGTA establishes innovative legal mechanisms so Albertans can get the level of decision making assistance appropriate to their needs. The decision making options under the AGTA are outlined below.

Supported Decision Making Authorizations (SDMAs) allow capable adults to authorize someone they trust to help them with decisions. (6) The authorization allows the "supporter" to access relevant information that might otherwise be protected under privacy laws. The supporter is also able to help the adult think through and communicate decisions. SDMAs will be useful for capable individuals with communication barriers (e.g. people whose first language is not English, people with mild disabilities).

Co-decision Making Orders (CDMOs) allow adults assessed as significantly impaired to consent to a Court order appointing a trusted person(s) as their co-decision maker. (7) The order requires the adult to make all or certain personal decisions in partnership with their...