Alberta Personal Directive
I am pleased to announce that the Power of Attorney Wizard can now be used to create a Personal Directive for individuals in Alberta:
Now you can create your own Last Will and Testament using the Will-O-Matic Wizard, and your own Power of Attorney for Property / Finances and a Personal Directive using the Power of Attorney Wizard as well!
If you’d like to know more about Personal Directives in Alberta…keep reading…
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.
What is a Personal Directive?
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. Personal care matters include: healthcare, housing, living arrangements, treatment (including medical treatment), cessation of life support, living accommodations, and legal matters not relating to your finances or estate. Personal Directives are governed by the Personal Directives Act, R.S.A. 2000, c P-6. The preamble of that Act says that Personal Directives cannot include instructions “relating to aided suicide, euthanasia or other instructions prohibited by law”. Also, a Personal Directive DOES NOT authorize an Agent to make decisions on another person’s behalf with respect to their property or financial affairs; rather, that is done through a “Power of Attorney” or “Enduring Power of Attorney” (if the Power of Attorney is to continue in effect after the person making it becomes mentally incapacitated).
Why do you need a Personal Directive?
If you become mentally incapacitated and DO NOT have a Personal Directive, then your family members WILL NOT automatically get to make decisions concerning your personal care on your behalf (a common misconception). Rather, someone will need to apply to court under the Adult Guardianship and Trusteeship Act, S.A. 2008, c A-4.2 to obtain an order appointing them as your “Co-Decision-Maker” or “Guardian”.
Note: a “Co-Decision-Maker” is a person who assists an adult who is impaired but who can still make decisions with good support; a Co-Decision-Maker can assist that adult in making decisions in one or more of the following areas of authority: health care, where and with whom the adult can live, who the adult may associate with, social activities, education or vocational training, employment, legal matters or any other personal matters the Court determines necessary. Co-decision-makers cannot make decisions on financial and property matters. A “Guardian” is a person who has the authority to make decisions on behalf of an adult who does not have the capacity to make decisions about their own personal matters. A Guardian may act, make decisions, give consents and do anything concerning the incapacitated adult’s personal matters which that adult would have been able to do (subject to limitations imposed by a Court).
By having a Personal Directive, you can choose who you want to be your Agent for personal care matters if you become mentally incapacitated. This can avoid costly, time-consuming, and potentially emotionally draining court-battles between family and friends
What are the legal requirements to have a Personal Directive?
To have a valid Personal Directive under section 5 of the Personal Directives Act, the Personal Directive:
- Must be made by someone who is at least 18 years old.
- Must be written, dated, and signed at the end by the Maker in the presence of a witness.
- Must authorize a person to be an Agent to make personal care decisions on the Maker’s behalf.
- Must be made by someone who understands the nature and effect of a Personal Directive.
- Must be signed by one witness who IS NOT: a minor, the Agent, a person who signs the Personal Directive on the Maker’s behalf, or the spouse or adult interdependent partner of the Maker, Agent, or person who signs on behalf of the Maker.
With respect to the requirement that a Maker must have sufficient capacity to make a Personal Directive, the Maker must understand:
- the kinds of personal matters over which he or she is giving power;
- the authority that is being given to the Agent;
- whether the person they name as their Agent is truly concerned with their well-being;
- that they may need the Agent to make decisions for them;
- that, as long as they are mentally capable of doing so, they can revoke the Personal Directive; and
- that there is always a chance that the Agent can misuse his or her authority.
Even if YOU DO have sufficient mental capacity at the time of making the Personal Directive, an interested party can apply to the court afterwards to question that capacity.