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Alberta Personal Directive (Part 3)

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Personal Directive (Alberta)

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.

Personal Directive (Alberta)

In Alberta, a “Personal Directive” is a legal document that allows a person (called a “Maker”) to designate another person (called an “Agent”) to make personal and non-financial decisions on the Maker’s behalf if they become mentally incapacitated and unable to make those types of decisions themselves.

In this blog, I’m going to continue my discussion of Personal Directives in Alberta…

Agent’s Duty, Authority, and Limitations

Unless a Personal Directive says otherwise, an Agent has authority to make personal decisions on all of the Maker’s personal matters: section 14(1) of the Personal Directives Act. That said, before exercising their authority, the Agent MUST first consult with the Maker regarding that decision: section 13 of the Act.

An Agent has an ongoing duty to determine whether or not a Maker has the mental capacity to make decisions concerning your personal care. An Agent must also recognize that the Maker may have the capacity to make some personal decisions but not others.

An Agent must act honestly and in good faith. An Agent must also follow any clear instructions provided in the Personal Directive that are relevant to the personal decision to be made: section 14(2) of the Act. If no such instructions are provided, then the Agent must make the decision that he or she believes the Maker would have been made in the circumstances (based on the Agent’s knowledge of the Maker’s wishes, beliefs and values or based on what the Agent believes is in the Maker’s best interests): sections 14(3) of the Act.

An Agent does not have authority relating to the following matters – unless the Personal Directive clearly says that the Agent does: psychosurgery; sterilization that is not medically necessary to protect the Maker’s health; removal of tissue from the Maker’s living body for implantation in the body of another person or for medical education or research purposes; or participation by the Maker in research or experimental activities: section 15 of the Act.

Finally, the Agent has a duty to maintain records of personal decisions which they make under a Personal Directive and to keep those records during the Maker’s incapacitation and for up to 2 years after the Agent’s authority ceases: section 17(1) of the Act.

Liability of the Agent

Section 28(1) of the Personal Directives Act says that no action (i.e. no grounds to sue) can be brought against an Agent for anything done or omitted to be done in good faith while carrying out their authority under the Act. Indeed, section 28(3) says that no action can be brought against an Agent for doing something or failing to do something in good faith in reliance on Personal Directive if the Maker of the Personal Directive has changed or revoked the Personal Directive OR revoked the Agent’s authority WITHOUT the Agent’s knowledge.

What happens when I die?

The Personal Directive only has effect while the Maker is alive. When the Maker dies, their Will (if they have one) or Alberta’s intestate laws (if they do not have a Will) will govern the final disposition of their property.

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