Alberta POA for Personal Care (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!
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.
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.
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.
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.