WCB Procedures

Guardianship and trusteeship

Procedure summary

Published On

Feb 4, 2025

Purpose

To facilitate the application for guardianship and/or trusteeship for a minor child who was the dependant(s)“dependant” means a member of the family of a worker who was wholly or partially dependent on the worker’s earnings at the time of the worker’s death or who, but for the death or disability due to the accident, would have been so dependent, but a person is not a partial dependant of a worker unless the person was partially dependent on contributions from the worker for the provision of the ordinary necessaries of life; of a deceased worker or for a severely injured worker who cannot make fundamental decisions regarding their own care, financial matters or their living circumstances due to a cognitive or physical medical condition following a workplace accident.

See policy 04-07, Part 1.

Description

The decision maker begins by reviewing all necessary documents and determining whether a guardianship and/or a trusteeship may be needed. Trusteeship is a legal requirement for a minor child who was a dependant of a deceased worker and is eligible for financial benefits. Guardianship/trusteeship may also be needed when a worker or a dependant of a deceased worker cannot make fundamental decisions regarding their own care, financial matters, or their living circumstance due to a cognitive or physical medical condition. In these cases, the decision to approve or deny guardianship/trusteeship is made by the court.

If the decision maker feels a guardian or trustee may be needed, they will contact the party providing care, a member of WCB's Legal Services Department and, when appropriate, the dependant's and/or worker's external legal counsel.

Once the parties have been contacted, the decision maker considers the information provided and determines if a guardian or trustee may still be necessary. If so, the decision maker takes steps to facilitate the application for trusteeship/guardianship when required including payment for the legal fees and any other costs associated with the application for guardianship or trusteeship. It is important to note that WCB does not make the decision on whether someone requires a guardian or trustee, however, may help facilitate the application process. The court will ultimately decide whether a guardian or trustee is required.

The decision maker then monitors the file to ensure of the proper allocation of funds to the trustee/guardian, appropriate treatment of a vulnerable worker or dependant by the party or agency providing care, or for the date a dependent minor no longer requires a trustee.

WCB covers the legal costs necessary for a standard appointment of a legal Guardian, and/or Trustee and the periodic reviews required by the court. Financial assistance may be given to the worker's family or any other private individual undertaking responsibility for the worker's well-being.

Key information

A severely injured worker or the dependant(s) of a worker who was fatally injured, who cannot make fundamental decisions regarding their own care, financial matters or their living circumstance due to a cognitive or physical medical condition may be in need of guardianship or trusteeship. WCB may facilitate applications for trusteeship/guardianship by arranging for legal representation for the applicant and paying for legal fees. The court determines if the application will be approved. WCB does not pay guardians/trustees for their duties and does not facilitate guardianship/trusteeship because of disagreement with an individual’s decisions.

In addition, a minor child who was a dependant of a deceased worker and is eligible for financial benefits is required to have a trustee from the Office of the Public Trustee.

Detailed business procedure

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1. Determine whether a guardianship or a trusteeship may be needed A guardian or trustee may be necessary. Trusteeship is a legal requirement for a dependent minor of a deceased worker who is eligible for financial benefits. Guardianship/trusteeship may also be needed when a worker or a dependant of a deceased worker cannot make fundamental decisions regarding their own care, financial matters or their living circumstance due to a cognitive or physical medical condition. Once appointed, the guardian or trustee will act as: A guardian for the worker's or dependant's personal decisions or A trustee for the worker's or dependant's financial decisions or Both guardian and trustee for all the worker's or dependant's personal and financial decisions. For a severely injured worker or a dependant of a deceased worker who cannot make fundamental decisions regarding their own care or is incapable of making decisions regarding financial matters due to a medical condition, a form must be completed by a physician confirming the need for guardianship or trusteeship. If the form is on file, review it to confirm the physician agrees a guardianship/trusteeship is needed. If they do not agree, end this procedure. This form is not required for dependent minor(s) of a deceased worker who are eligible for financial benefits.	Administrative tasks A completed Form 1The Form 1 is a provincial government form that is completed by physicians to advise that a severely injured worker requires guardianship and/or trusteeship. must be on file for severely injured workers and dependants of a deceased worker who cannot make fundamental decisions regarding their own care or is incapable of making decisions regarding financial matters due to a medical condition, confirming that the physician agrees a trusteeship/guardianship is required, prior to facilitating an application for either a guardianship and/or trusteeship.
2. Contact the parties caring for the dependant/severely injured worker Discuss the need for a guardian and/or trustee with the party caring for the dependant (including minor dependent) of a deceased worker or for a severely injured worker who cannot make fundamental decisions regarding their own care or is incapable of making decisions regarding financial matters due to a medical condition. Dependent minor who is entitled to financial benefits Ask if the minor has an account with the Office of the Public Trustee. If not, explain that an application will be submitted for an account. All benefits will be issued to the Office of the Public Trustee. Worker/dependant who cannot make fundamental decisions regarding their own care or is incapable of making decisions regarding financial matters due to a medical condition Determine if any party wants to apply to be the guardian/trustee. A court order is needed to appoint someone as the guardian or trustee for the injured worker or the dependant(s) of a deceased worker. Ask whether they have already obtained legal counsel. Let them know that the file will be referred to the Legal Service Department to facilitate the application of guardianship and/or trusteeship and assist in selecting and retaining external counsel, if they have not already done so. If they have already obtained legal counsel, request the contact information of the external lawyer. If the proposed guardian and/or trustee requests a specific lawyer, the Legal Service Department will consider this request. Confirm that WCB will pay the legal fees and other costs for obtaining the guardianship or trusteeship. Confirm the conversation in writing. Note: The external lawyer for the guardian and/or trustee must be in contact with the WCB Legal Services department to be retained before billable work is started. The decision maker will contact a lawyer in the WCB legal department to discuss the application of guardianship or trusteeship. Include details on: The reason a guardianship or trusteeship is required. The name of the proposed guardian and/or trustee. The location (city of residence) of the parties. A member of the Legal Services department will retain or contact the external counsel, and request they begin the guardianship or trusteeship application. When a member of the Legal Services Department retains an external lawyer, the contact information will be forwarded to the decision maker. Note: If the dependant or a severely injured worker lives in a remote area, the Legal Service Department may have the guardian or trustee obtain a lawyer themselves.	Administrative tasks Send a custom letter (CL000A) to the party caring for the worker or the dependant(s) of a deceased worker, confirming the conversation. Complete and fax the Workers’ Compensation Board Benefits For Minor Dependants (FM775AFC) form to the local Office of the Public TrusteeEdmonton and area (780) 422-9136. Calgary and area (403) 297-2823.. See EW> departments> legal services and investigations> who to contact for more information.
3. Arrange for payments and issue benefits Review the invoice for legal fees to ensure that a senior lawyer within the WCB Legal Department has approved it and issue a payment. Note: In some cases, the Legal Services Department will arrange for the legal fees to be paid. Upon notification that the trusteeship/ guardianship has been granted ensure the court documents are on file, confirming the appointment of a guardian and/or trustee. When a trustee has been appointed, request the Payment Unit review for any required changes to the payee prior to issuing any benefits.	Administrative tasks When the trustee is the Office of the Public Trustee, add them as a participant on the claim. Request payment of the legal fees using TOP/NOPThis is the payment code (Type of payment/Nature of payment) used to issue the payment. code EX14. Complete the payment description line to include details of the payment. For dependants or if the worker is already in receipt of a pension or will be receiving a pension send a file note with payment details to the Payment/Fatal & Pension Team Desk, with the payment schedule: To set up and issue payments when there is no pension in effect. To review the changes required when there is already a pension in effect. For workers who are not and will not receive a pension, a decision maker can change the payee. i.e. if a worker is in receipt of a zero based ELP this payee can be changed without the payment unit's assistance. The following legal fees can be paid up to this amount unless otherwise authorized by Legal Services Département: Guardianship: $2000.00 or as authorized by the Legal Services Department Trusteeship: $2000.00 or as authorized by the Legal Services Department Guardianship and trusteeship: $2500.00 or as authorized by the Legal Services Department Disbursements paid over the above fees $350.00 or as authorized by the Legal Services Department. Explain the dependant's benefits by completing the appropriate letter and send it to the Payment Unit to be mailed with the initial cheque payable to the Office of the Public Trustee: Fatal - Public Trustee [OPT] - Benefits (GE400L) letter. Fatal - Public Trustee [OPT] - Apportionment (GE400Q) letter.
4. Monitor the claim Dependent minors The Office of the Public Trustee will monitor the account. When a dependent minor turns 18, the trusteeship ends, and any ongoing financial benefits are issued directly to the dependant. Severely injured workers/dependants who cannot make fundamental decisions regarding their own care or are incapable of making decisions regarding financial matters due to a medical condition Monitor the claim and ensure the worker's needs are being met. If the guardianship and/or trusteeship need to be renewed (time frames for renewals will be directed by the courts), request payment of the legal fees using TOP/NOP code EX-14 and complete the payment description line to include details of the payment. Contact the Legal Services Department for approved legal fees. If concerns arise regarding misappropriation of funds, or the dependant's or worker's quality of life, call or email a senior lawyer in the Legal Services Department for review and advice on the appropriate action. Identifying and reporting abuse It is the obligation of the decision maker, service provider or any other individual who becomes aware of the abuse to report abuse. When there are reasonable and probable grounds to believe that a dependant or injured worker is experiencing abuse while in the care of a guardian, trustee or agency, it is their obligation to report that information to the appropriate authority. Failure to do so can result in monetary or penal sanctions. Any concerns or suspicion of abuse must be reportedIf a report is not filed. Failure to report it is an offence and may lead to a fine of up to $2,000 or imprisonment for a period of not more than six months. forthwith in accordance with 4 Section 3 of the Child Welfare Act and Section 7 of the Protection for Persons in Care Act Report incidents of abuse by a member of an agency in writing (and in urgent situations by telephone) to: A member of a police service. A committee, body or person authorized under the Child Welfare Act, the Protection for Persons in Care Act, or other enactment empowered to investigate abuse. A Supervisor and/or Manager should determine any additional steps that should be taken. Report concerns of child abuse to Children and Family Services by calling their nearest office or the Child Intervention hotlineOpen 24 hours a day, 1-800-638-0715. Reports received by Alberta Children and Family Services are confidential and names are not shared with anyone unless they are required to testify in court. After reporting the concerns: Document the concern. Document the date that Children's Services was called. Once reported, send the documentation to the manager's secretary. The manager's secretaries will keep the files pertaining to suspected child abuse. Note: This documentation does not to go on a claim file or employer file. If concerns arise regarding the misappropriation of funds, or the dependant's or worker's quality of life, call or email a senior lawyer for review and advice on the appropriate action.	Administrative tasks A task is automatically generated to the claim once the dependent minor reaches 18 years of age. For dates of accident prior to September 1, 2018, the dependant is not entitled to further benefits. Send the Fatal - Child turns 18 (GE400D) letter, advising that benefits will be discontinued once the dependant turns 18 years old. For dates of accident on/after September 1, 2018, the dependant is entitled to further benefits after turning 18. In this case, as the trusteeship ends at age 18, send a file note to the Payment Unit requesting that the payee be changed to the dependant. Send the appropriate GE403 series letter. Set a reminder task using a yearly repeat rule to monitor the claim and ensure the worker's/ dependant's needs are being met. The Child Welfare Act also states that the duty to report overrides any right of confidentiality or privilege a person in a profession or occupation may claim, except for the confidential relationship that exists between a solicitor and a client. Contact a member of the Legal Services Department if there is any question of whether Children's Services should be contacted.

Definitions

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Guardianship A severely injured worker or a dependant has lost the ability to consent to or make decisions about health-care treatment(s) or where they live may be in need of support. In such cases, a health-care provider may choose one of the worker’s relatives to make important decisions on their behalf. The primary goal in guardianship is to ensure the dependant is given as much control of their own affairs as possible, given their medical condition. The extent of the guardian's role is determined by the worker's or dependant's capacity given their medical condition or, in some cases, their age. Once appointed, the guardian is capable of: Determining the dependant's temporary or permanent residence. Deciding whether the dependant should engage in social activities, including the nature or extent of the activities. Commencing, compromising, or settling any legal action proceeding that does not relate to the dependent's estate. Commencing, compromising, or settling any legal action taken against the dependant that does not relate to the estate. Consenting to any health care that is in the best interest of the dependant. Making normal day-to-day decisions on behalf of the dependant including their diet and dress.
Trusteeship A trustee is appointed as the legal authority to make financial decisions for the worker or the dependant(s). All dependent minors who were entitled to financial benefits must have a trustee through the Office of the Public Trustee. In the case of an adult worker or dependant, they may be eligible for a trustee when they: Are 18 years of age or older. Have completed a capacity assessment, confirming they lack the capacity to make financial decisions. Have assets or financial interests that need to be protected; less intrusive and less restrictive options would not be adequate. Do not have an enduring power of attorney or the capacity to make a power of attorney and need someone to make financial decisions for them. Once appointed, the trustee provides the maintenance, education, benefit and advancement of the worker or dependant in respect of the worker's/dependant's estate. The worker/ dependant's benefits are issued to the Trustee.
Definitions of abuse The definitions of abuse under the Protection for Persons in Care Act can include an act or omission that: Causes bodily harm. Causes emotional harm, including, but not limited to, threatening, intimidating, humiliating, harassing, coercing or restricting from appropriate social contact. Results in the administration, withholding or prescribing of medication for an inappropriate purpose, resulting in serious bodily harm. Subjects an individual to non-consensual sexual contact, activity or behavior. Involves misappropriating or improperly or illegally converting a significant amount of money or other valuable possessions. Results in failing to provide adequate nutrition, adequate medical attention or other necessity of life without a valid consent, resulting in serious bodily harm. The definition of abuse as per Child Welfare Services can include any of the following: Neglect: The person responsible for a child fails to provide the child with the necessities of life or adequate supervision. Physical Abuse: The person responsible for a child deliberately inflicts injury to any part of a child's body or fails to protect the child from such injury. Sexual Abuse: The child is not protected from or is inappropriately exposed or subjected to sexual contact, activity or behavior. Emotional Injury: When both of the following exist, Substantial and observable impairment of the child's mental or emotional functioning. Grounds to believe this impairment is the result of rejection, deprivation of affection or cognitive stimulation, exposure to domestic violence, inappropriate criticism, threats, humiliation, accusations or expectations or the mental, emotional or substance abuse condition of the parent.
Agencies Agencies providing care to vulnerable adults can be defined as any of the following: An approved hospital as defined in the Hospitals Act. A lodge accommodation as defined in the Alberta Housing Act. A continuing care home (e.g., Government funded emergency shelter, residential drug and alcohol treatment center, group home, etc.) as defined in the Continuing Care Act. Any institution or organization designated by regulation as an agency.

Supporting references

Policies

Procedures

PARP 4.17-5
PARP 4-17-6

Workers’ Compensation Act

Applicable sections

Section 70 (1-11)
section 89 (1-2)

General Regulation

Applicable sections

Related Legislation

Applicable sections

Compatibility Warning

WCB Procedures

Guardianship and trusteeship

Procedure summary

Detailed business procedure

Administrative tasks

Administrative tasks

Administrative tasks

Administrative tasks

Definitions

Supporting references

Policies

Procedures

Related links

Workers’ Compensation Act

General Regulation

Related Legislation