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… This is the fourth blog in a series. The first blog can be found here, the second blog can be read here and the third blog can be read 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.
What is the basic structure of a Personal Directive?
First, the Maker (the party making the Personal Directive) and the nature of the document (e.g. Personal Directive) are identified. The date on which the Personal Directive is made is typically included here too.
Revoke Previous Personal Directives
Here, you can revoke any previous Personal Directives you have made (to ensure that you only have one Personal Directive). If you are making multiple Personal Directives (e.g. each one with a specific Agent to handle specific personal matters), then just be sure to indicate that you are not revoking those ones too!
Designating an Agent
Next, you’ll need to identify your Agent. Typically, this will be a family member or close personal friend. Use their full legal name and even adding an identifier (e.g. my son, my spouse, etc.) may help. You can also consider appointing more than one person as your Agent. This may be to share or divide responsibilities and to make sure there are sufficient checks and balances on decision-making; at the same time, it may overly complicate things and cause headache (diverging opinions coupled with joint decision-making authority may cause delays and turmoil!). The Agent does not need to live in Alberta.
For whatever reason, in case the individual you appointed is incapable (e.g. vacation, sickness, death) or unwilling (e.g. through retirement) to act or continue to act as your Agent at the time they need to, you should appoint a substitute Agent. Better be safe than sorry!
Finally, you can appoint the Public Guardian to act as your Agent, but only if the Public Guardian is the only Agent designated in the Personal Directive, the Maker is satisfied that the Public Guardian and no other person is able and willing to act as the Agent, and the Public Guardian consents to being designated as the Agent.
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 WRITTEN DECLARATION 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 WRITTEN DECLARATION that the Maker lacks capacity.
The Maker can require the person designated by them to determine their capacity (which is typically your Agent) to immediately provide a copy of the declaration (discussed above) to the Maker, the Agent (if the Agent wasn’t the person making the declaration), and various people identified in the Personal Directive. These people generally include the Maker’s spouse, children, family, friends, medical practitioners, accountant, lawyer, and other interested persons. The Maker should continually update the Personal Directive to ensure that it contains the latest contact information (e.g. address, phone number, email fax) for these people.
Authority of Agent
Here, you can either give your agent full and unrestricted power-making authority, or you can limit that authority to specific personal matters (e.g. health care, accommodation, living arrangements, participation in social, education and employment activities). For greater certainty, “health care” decisions include:
- consenting, refusing to consent, or withdrawing from any kind of health care;
- reviewing the Maker’s medical records and consenting to their disclosure to others;
- authorize the Maker’s admission to or discharge from any medical or care facility;
- signing waivers, releases or permissions required by any person or facility providing health care services to the Maker;
- obtaining health care services on behalf of the Maker; and
- retaining the services of caregivers and terminating those services.
Additional Authority of Agent
As previously discussed, 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. If the Maker does not want to give the Agent authority to make these types of decisions, then the Personal Directive should not say anything.
Recall that 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.
Once you’ve come to this point, you’ve got to make a real decision: what exactly do you want your final wishes to be concerning the medical attention you receive when the Personal Directive becomes effective? For some people, they want to be removed from life support, receiving medication only to control pain and not resuscitated when they die. For others, they want to be kept alive for as long as possible, given medication to control pain and then resuscitated in case they die. You can even specify the type of treatment you would like to receive in certain circumstances. For example, if you suffer from a mild stroke or mild dementia, you might want to receive and continue receiving all major treatments – such as CPR, life saving surgery or antibiotics.
Here, the Maker will acknowledge various things to help ensure that they have sufficient mental capacity to make the Personal Directive.
Use blue ink (to show it’s an original signature) instead of black. Also, please read above concerning who can qualify as a witness.