What is a personal directive?
A Personal Directive is a legal document, which is sometimes colloquially referred to as a “living will”. It gives someone else the authority to make decisions for you about personal and non-financial matters while you are still alive but have lost the mental capacity to make personal decisions. In Alberta, the Personal Directives Act is the law that governs how a personal directive is created.
To be valid, a personal directive must be in writing, be dated and be signed by the individual and a witness. The person who makes the Personal Directive is called the maker. The person the maker appoints to make personal decisions on their behalf is called an agent. The agent cannot also be the witness to the personal directive.
A personal directive comes into effect when you no longer have the mental capacity to make personal decisions. Mental capacity means the ability to understand information that is relevant to the decision and the ability to appreciate any reasonably foreseeable consequences of the decision. Often a personal directive will require the loss of capacity to be confirmed by the written declaration of a medical doctor to become effective. Once in effect, it will only apply while you are still alive and will end:
- when you die;
- if you regain capacity and revoke it,
- by court order; or
- if your agent dies.
What can an agent do?
Usually, personal decisions mean any matter of a non-financial nature that includes health care, accommodations and living arrangements, participation in social activities, education and legal matters not related to your estate.
When deciding to appoint an individual as your agent, care and attention should be paid to ensure you trust that person understands your wishes, beliefs and values and will act in your best interests. Unless you specifically limit their powers, an agent has the authority to make personal decisions on all personal matters of the maker. If the personal directive does not contain clear instructions relevant to the decision, the agent must make the decision that they believe the maker would have made in the same circumstances, based on their knowledge of the wishes, beliefs, and values of the maker. If they don’t know what your wishes, beliefs and values are, they then must make the decision based on your best interests.
While a personal directive gives an agent the authority to make personal decisions on your behalf, they cannot make any decisions about any financial matters. This power comes from a separate legal document called an Enduring Power of Attorney.
Do you need one if you already have a will?
Yes! A will only comes into effect when you pass away. If you lose capacity and you don’t have a personal directive in place another person cannot automatically make personal decisions for you. To make any personal decisions on your behalf, your family members would be required to apply to the court under Alberta’s Adult Guardianship and Trusteeship Act, which can often be a very complex, time consuming and expensive process. You would also have no input on who the court appoints, which may result in someone you don’t want making decisions for you.
Where should I keep my personal directive?
Once your personal directive is completed you should put the original in a safe place where your agent can easily access it if necessary. Often service providers will not accept a photocopied version and will require either an original or a notarized copy.
Our estate planning lawyers at Getz Collins and Associates can help answer any questions you have about getting a personal directive in place. Contact us today.