Alberta Personal Directives (Part 2)

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.

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:

  1. 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.
  2. 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.

Do you have to deposit your Personal Directive somewhere?

There is no requirement that you deposit your Personal Directive in any specific place. That said, the Maker of a Personal Directive MAY register certain information concerning their Personal Directive with the government of Alberta: section 7.2 of the Personal Directives Act. Section 4(1) of the Personal Directives Regulation, Alta Reg 99/2008 specifies what information is to be provided to the government:

  • The date the Maker signed the personal directive;
  • The Maker’s name, phone number, mailing address, email address, date of birth and personal health number; and
  • The Agent’s name, phone number, mailing address, and email address;

If the information is correct, confirmed, and consented to by the Maker and the Agent, then it will be registered with the government of Alberta. The government may disclose that information to the Maker, the Agent, persons who are interested in the Maker’s welfare, and other third parties (e.g. health care services providers, a public body under the Freedom of Information and Protection of Privacy Act, a custodian under the Health Information Act, and an organization under the Personal Information Protection Act).

With respect to what a Maker should do with the Personal Directive itself, it is best to leave it in a secure place (e.g. fireproof safe, with a trusted third party) and let your Agent know where it is (or give him or her a copy). Instead of making additional original versions of the Personal Directive, it is best to make one version and then have a lawyer notarize a true copy of that original.

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