Planning for Incapacity - Personal Directives

Under Alberta law, you can plan in advance and appoint another person or persons to act on your behalf should you lose the mental capacity to make decisions for yourself.  Business and financial matters are dealt with under an Enduring Power of Attorney and personal decisions are dealt with under a Personal Directive.  Both are essential documents in a comprehensive estate plan.

What is a Personal Directive?

A Personal Directive is a binding legal document which allows you to state your wishes regarding personal matters in the event you cannot make such decisions for yourself in the future.   In the personal directive, you can name a person or persons to make personal decisions on your behalf and you can set out instructions as to how you wish those personal decisions to be made.  The person appointed by you to make those decisions is referred to as your "Agent".  The personal decisions which an Agent can make on your behalf are set out in the Personal Directives Act, and include matters such as your health care, where you live, and with whom you have contact. You can authorize your Agent to make all such decisions on your behalf or you can restrict the powers of your Agent to specific powers chosen by you.

Why should I have a Personal Directive?

If you lose the mental capacity to make your own personal decisions, a personal directive allows the person whom you have appointed to step in and make those decisions for you.   If you do not have a personal directive and you become mentally incapacitated, someone may have to make a court application to be appointed as your guardian.  Such court applications are inconvenient, expensive, and an intrusion on your privacy, and the matter may have to be brought back into court for periodic review.  The persons who have priority to apply to be your guardian may not be the persons whom you would want making personal decisions for you.  The personal directive allows you to maintain a greater deal of control over your personal matters.

What is contained in a Personal Directive?

Agent appointment:

You can appoint an Agent to make personal decisions on your behalf.  You can appoint one person (for example, your spouse) or more than one person (for example, your children) to so act.  It is wise to appoint an alternate Agent or Agents to act, should your first named Agent die, or for any reason be unable or unwilling to carry out their duties as your Agent.   You can also specify that an Agent is to act for a specified period of time, and then shall be replaced upon a specified event.  For example, you can state that you wish your brother to be your Agent, until your daughter reaches the age of 18 and is willing and able to act, at which point in time, the appointment of your daughter shall come into effect.

A personal directive does not have to contain an Agent appointment and can simply set forth your wishes regarding personal decisions; however, most people do use the personal directive to choose who will be acting as their Agent.   The Agent must be 18 years of age when called upon to act and must have the mental capacity required to make decisions on your behalf.  The person you appoint should be someone you trust to make health care and personal decisions based on what they know you would have wanted, and to make those decisions in your best interests.  This might be your spouse, adult interdependent partner (common law spouse), adult children, family member or trusted friend.

You do not have to choose the same person to be both your Agent under your Personal Directive and your Attorney under your Enduring Power of Attorney. In some instances, it can be preferable to have a different person for each role.   If you appoint more than one Agent, you can specify that they are to make decisions jointly, you can state whose decision is to have precedence if they cannot reach a consensus, you can specify a means by which disputes between Agents are resolved, or you can state that they each have separate areas of authority.

Open discussion with your Agent is essential.  You cannot specify within the Personal Directive all the possible decisions which your Agent may face in connection with your care.  It is important to discuss with your Agent your wishes in advance so they will be able to carry out their duties in the way you would have wanted.  It is also crucial to ensure in advance that your Agent is willing to assume this time-consuming and significant responsibility.

Directions regarding personal decisions:

Your Agent must follow any clear instructions that you provide in your Personal Directive that are relevant to the personal decision to be made.  If your Personal Directive does not contain clear instructions that are relevant to the decision to be made, your Agent must make the decision that your Agent believes you would have made in the circumstances, based on your Agentís knowledge of your wishes, beliefs and values.

You can use the Personal Directive to give general and specific directions as to how you would wish personal decisions to be made on your behalf.   These sorts of decisions may involve urgent, critical health care issues, such as whether or not you are to be kept on life support, and long term decisions, such as whether you wish to be cared for at home, finances permitting, or in an institutional setting.  You can also specify which types of treatments you wish or do not wish to be given.  A Personal Directive cannot direct that an illegal procedure such as assisted suicide or euthanasia be used.

Legal requirements:

To give legal effect to your wishes you must execute a Personal Directive which complies with the legislation.  It must be: (a) made after December 1, 1997, (b) in writing, (c) dated, and (d) signed by you at the end of the document in the presence of a witness.  The witness may not be your spouse, your Agent or your Agent's spouse.  Spouse includes adult interdependent partners (i.e. common law spouses).

Guardianship of minor children:

You may use the Personal Directive to set forth your wishes as to whom you would like to have act as temporary guardian for your minor children in the event you are unable to do so due to mental incapacity. This guardian may, but does not need to be, the same person as your Agent.

Organ donation:

Many people use their Personal Directive to state or reiterate their consent regarding tissue and organ donation.

How will it be determined that you have lost your mental capacity?

The legislation governing personal directives allows you to designate someone who is to make the determination as to your mental capacity after consulting with a physician or psychologist.  Should you not make such designation, or should that person not be available to do so, then two healthcare "service providers", one of whom is a physician or psychologist, are to certify your incapacity.

The authority of your Agent is strictly limited to only those matters in respect of which you have lost mental capacity.  If your condition improves so that you regain the ability to make some or all of your personal care decisions, the authority of your Agent ceases in connection with such matters.

How often should you review your Personal Directive?

Preparing a Personal Directive requires the same careful consideration that preparing your Will does.  Like your Will, your Personal Directive should be reviewed regularly to make sure it continues to meet your needs. Your views about medical and personal care decisions can change over time, particularly if you are faced with an emergency or serious illness.