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Planning to Protect Your Interests: An Introduction to Personal Directives

When people think about an estate plan, the first topic that comes to mind is a Will. Although a legally effective and up to date Will is an essential component of estate planning, it is by no means sufficient. Most importantly, a Will only applies after death; it does not protect your interests if you lose capacity and are unable to make personal decisions about your care and well-being.

Effective estate planning includes three interdependent legal documents:

  1. Will;
  2. Enduring Power of Attorney; and
  3. Personal Directive.

This page focuses exclusively on the purpose and importance of a Personal Directive.

What is a Personal Directive?

A Personal Directive is a written, signed, and witnessed document that grants a person (or persons) known as an “agent” the right to make personal, non-financial decisions on your behalf if you lose capacity. Simply put, a Personal Directive gives you control over decisions related to your health care, living arrangements, and social activities after you lose the capacity to make these decisions for yourself.

Most importantly, a Personal Directive:

  1. names the person (or people) you want to make personal decisions on your behalf, if you are not able to make them for yourself;
  2. provides your instructions about any or all personal matters that are non-financial; and
  3. only comes into effect when at least one physician or psychologist determines that you no longer have capacity.

What Does it Mean to “Lose Capacity”?

“Capacity” is a legal term defined as your ability to understand the information relevant to making a personal decision and the ability to appreciate the foreseeable consequences of that personal decision.

Whether or not you have capacity is determined in one of two ways:

  1. Your Personal Directive can designate a specific person to consult with a physician or psychologist to determine if you have lost capacity; or
  2. If your Personal Directive does not designate someone, two service providers must make a written declaration that you no longer have capacity. At least one of these service providers must be a physician or a psychologist. 

Why is a Personal Directive Important?

Considering the loss of capacity can be difficult. Unfortunately, life changing illness, accidents, or dementia can happen to anyone. Effective planning can help ensure your interests are protected and wishes followed even after you are unable to make decisions for yourself.

The easiest way to understand the importance of a Personal Directive is to consider what can happen if you lose capacity without legally effective instructions in place. Most importantly, under Alberta law, another person (such as your spouse, partner, or adult child) cannot automatically make a personal decision for you. Not having someone to make important decisions on your behalf can have a significant impact on your care and well-being.

In the event of a medical emergency, a healthcare worker can still provide care, but may need to choose a next of kin to make a decision for you. Unfortunately, this process can lead to situations where the healthcare worker or family member they nominate makes a decision that goes against your wishes.

For any personal decision that is not a medical emergency, only your agent or legal guardian can make a decision on your behalf. This means that if you do not have a Personal Directive in place, a family member or other interested party must apply to the Court to become your legal guardian under the Adult Guardianship and Trusteeship Act. This process has several important implications:

First, applying to become a legal guardian can be expensive and take a significant amount of time. During this time, no one will be able to make important decisions about your personal care.

Second, it is possible that the Court-nominated guardian is not someone you would choose to make decisions in your best interest. Additionally, the Court-nominated guardian may not know your wishes for future care.

Finally, uncertainty about how you want to spend your remaining time can lead to expensive and difficult legal disputes between family members who may disagree about your wishes. 

What Should I Include in My Personal Directive?

The amount of information and type of instructions in a Personal Directive will vary according to your individual priorities. Some people will limit their agent’s ability to make decisions to certain specific topics, while others may give their agent broad power to make any personal decision that may arise.

Regardless of your preferred approach, it is important to consider your priorities for:

  1. your medical care;
  2. where you would like to live;
  3. with whom you would like to live;
  4. who you would like to care for any minor children;
  5. your religious practices; and
  6. any instructions on end of life care.

How Does My Agent Make a Decision?

Once there is a written declaration that you lack capacity, your agent must follow specific steps for each and every personal decision they make on your behalf.

First, your agent must consult you before making any personal decision.

Second, your agent must follow any clear instructions set out in your Personal Directive.

Third, if your Personal Directive does not include clear instructions, the agent must make the decision they believe you would have made based on their knowledge of your wishes, beliefs, and values.

Finally, if your agent does not know your wishes, beliefs, or values about a specific decision, they must make the decision they believe is in your best interest.

How Long Does a Personal Directive Last?

A Personal Directive lasts until one of the following occurs:

  1. you revoke your Personal Directive before you lose capacity;
  2. you regain mental capacity;
  3. you die;
  4. your agent dies, or is unable to act and there is no alternate agent; or
  5. a court determines your Personal Directive no longer has effect.

Review and Update Your Personal Directive

It is important to keep your Personal Directive up to date. Beyond ensuring that your instructions are legally effective, adjusting your Personal Directive over time ensures your plan reflects any changes in your preferences and relationships. 

How Can Vogel LLP Support your Planning?

Estate planning can be a difficult topic for you and your loved ones. However, planning is not only about preparing for challenging situations. Effective estate planning is also about protecting your interests and ensuring your loved ones have the ability to follow your wishes.

Although the purpose of a personal directive is straightforward, the different options and legal requirements can be overwhelming. The Estates Team at Vogel LLP is uniquely positioned to work with you to prepare your personal directive to protect your interests and priorities for the future.

Our Lawyers

Anthea Law

Partner

Leslie Taylor

Lawyer

Victor Vogel, Q.C.

Partner