Understanding the Differences Between “Enduring Power of Attorney” and “Personal Directives” in Alberta

In the province of Alberta, there are two essential legal documents that individuals should consider creating to ensure their wishes are respected in case of incapacity or inability to make decisions for themselves. These documents are the “Enduring Power of Attorney” and “Personal Directive”. Both serve distinct purposes, and understanding their differences is crucial for individuals to make informed decisions about their future healthcare and financial matters. This blog aims to shed light on the dissimilarities between these two legal instruments to help Albertans navigate their estate planning more effectively.

Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a legal document that allows an individual, referred to as the “donor,” to designate another person, known as the “attorney” or “agent,” to manage their financial and property affairs. The enduring aspect comes into effect when the donor becomes incapacitated or unable to handle their financial matters. The key points to consider regarding EPAs are:

1. Financial and Property Matters: The primary purpose of an EPA is to grant the designated attorney authority to handle the donor’s finances, property transactions, banking, paying bills, and other money-related affairs. This document is powerful and can be tailored to be as broad or as limited as the donor wishes.
2. Incapacity Trigger: An EPA specifically comes into effect only when the donor is considered mentally incapable, as verified by a medical professional or a specified capacity assessor. Until the point of incapacity, the donor retains full control over their financial decisions.
3. Revocable: So long as the donor is mentally capable, they have the right to revoke or amend the EPA as they see fit. This flexibility allows individuals to adjust their decisions based on changing circumstances or relationships.
4. Limitations: EPAs only pertain to financial matters and do not grant the designated attorney the authority to make decisions about healthcare or personal matters.

Personal Directive

A Personal Directive (PD) is another critical legal document that allows an individual to appoint a trusted person, known as a “proxy” or “agent,” to make decisions about their personal and healthcare matters in the event of incapacity. Key points related to PDs include:

1. Personal and Healthcare Matters: Unlike an EPA, a Personal Directive deals exclusively with personal and healthcare decisions. The appointed proxy has the authority to make choices about medical treatments, living arrangements, end-of-life care, and other personal matters.
2. Incapacity Trigger: A PD only comes into effect when the individual is unable to make their own healthcare decisions due to mental incapacity. This incapacity must be verified by a healthcare professional.
3. Revocable: Like an EPA, a Personal Directive is revocable by the individual so long as they have the mental capacity to do so. If the individual recovers from the incapacity, they regain control over their healthcare decisions.
4. Limitations: A PD does not grant the proxy any power over the donor’s financial or property matters. Its sole focus is on healthcare and personal decisions.

The Complementary Nature of EPA and PD

Both the Enduring Power of Attorney and Personal Directive serve different purposes but complement each other in comprehensive estate planning. Combining these documents ensures that both financial and personal affairs are adequately addressed in case of incapacity. The following points highlight their complementary nature:

1. Comprehensive Protection: By having both an EPA and a PD in place, an individual ensures that their financial and healthcare interests are protected. This dual approach empowers them to appoint dedicated agents for each aspect, ensuring specialized attention to their needs.
2. Avoiding Court Intervention: Creating both documents can help prevent court intervention if incapacity arises. Having clear legal instructions and designated agents eliminates the need for costly and time-consuming guardianship or trusteeship proceedings.
3. Smooth Decision-Making: With an EPA and a PD in place, there is a clear framework for decision-making when it comes to property management and healthcare choices. This clarity can ease the burden on family members during challenging times.

In conclusion, creating both an Enduring Power of Attorney and a Personal Directive is essential for comprehensive estate planning in Alberta. While an EPA addresses financial and property matters, a PD deals with personal and healthcare decisions. These documents work in tandem to provide individuals with the confidence that their wishes will be honored even if they become incapacitated. By understanding the differences between these legal instruments, Albertans can make informed choices and take proactive steps to secure their future and protect their interests. Seeking professional legal advice in creating these documents is advisable to ensure that they align with the individual’s specific needs and circumstances. Remember, proper estate planning brings peace of mind and helps safeguard the well-being of both the individual and their loved ones.