Alberta Personal Directives
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… This is the second blog in a series. The first blog can be found here.
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.
Is there a standard form Personal Directive?
While there is a prescribed form in Schedule 1 of the Personal Directives (Ministerial) Regulation, Alta Reg 26/1998 (made under the Personal Directives Act), the use of that form is NOT MANDATORY: section 6.1 of the Personal Directives Act. Indeed, that Personal Directive does not address a number of issues – such as access to the Maker’s confidential information, instructions concerning the Maker’s final medical treatment.
Is a lawyer required?
The Personal Directives Act does NOT require that a lawyer prepare or help you complete a Personal Directive. That said, if you have a complicated situation, it may be worthwhile to engage a lawyer to prepare a Personal Directive for you. If you are worried that a party may challenge in the future your mental capacity to make the power of attorney, you should also consult a lawyer. They will know how to legally address this situation (e.g. by getting a medical report confirming your capacity at the time you make the Personal Directive) to reduce the risk of future challenges.
When does a Personal Directive take effect?
A Personal Directive, or part of a Personal Directive, takes effect with respect to a personal matter (e.g. healthcare, housing, treatment, etc.) ONLY when the Maker lacks capacity with respect to that matter: section 9(1) of the Personal Directives Act. So a Maker may maintain capacity with respect to certain personal matters, but lack capacity with respect to other personal matters. So when does a Maker “lack capacity”? Well, section 9(2) and of the Act says that a Maker lacks capacity in the following situations:
- If the Personal Directive SPECIFIES a person who will determine the Maker’s capacity (e.g. the Agent), then the Personal Directive will become effective when that person makes a determination in writing after consulting with a physician or psychologist, that the Maker lacks capacity.
- If the Personal Directive SPECIFIES a person who will determine the Maker’s capacity but that person is unable or unwilling to do so OR the Personal Directive DOES NOT SPECIFY a person who will determine the Maker’s capacity, then the Personal Directive will become effective when 2 service providers, at least one of whom is a physician or psychologist, make a determination in writing that the Maker lacks capacity.
How can a Maker revoke a Personal Directive?
Pursuant to Section 8 of the Personal Directives Act, a Maker can revoke a Personal Directive at any time after making it if:
- The Maker understands the nature and effect of revoking a personal directive.
- The Personal Directive specifies a date or event on which it is to be revoked (in whole or in part) and that date or event occurs.
- The Maker makes another Personal Directive that contradicts a previously made Personal Directive – to the extent of the contradiction.
- The Maker makes any document (including another Personal Directive) that expresses an intention to revoke an earlier Personal Directive (in whole or in part). That document must comply with the same legal requirements for making a Personal Directive (i.e. be in writing, dated, signed, witnessed, etc.).
- The Maker destroys the original Personal Directive with the intention of revoking it.
How can a Personal Directive cease to have effect?
If the Maker is mentally incompetent and is unable to revoke the Personal Directive (as discussed above), then the Personal Directive and the Agent’s authority to act will continue until or unless terminated in any of the following circumstances (section 10 of the Personal Directives Act):
- The Maker dies.
- The Agent dies or is unable to act because of mental incapacitation and there is no substitute Agent.
- A determination has been made that the Maker has regained capacity to make decisions with respect to a personal matter.
- A Court orders that a Personal Directive ceases to have effect.