A Personal Directive is a legal document that allows one to appoint a person to make decisions on your behalf should you lose the capacity to do so yourself. Unlike a Will, which guides the division of your property after your death, a Personal Directive guides decisions made on your behalf while you are still alive but without capacity. A Directive can include a wide array of areas of decision-making authority, including the nature and extent of your medical care, long-term care and living arrangements, and who becomes a guardian to your minor children.
Directives can be used short-term, such as after a serious accident that leaves you unable to make decisions for a few days, or long-term, such as with the onset of dementia and other age-related debilitations.
If you do lose the capacity to make decisions and are without a Personal Directive, a healthcare provider may select the nearest living relative to make decisions for you. If your ability to make decisions is affected permanently, your family may have to apply to the court to become your guardian under Alberta’s Adult Guardianship and Trusteeship Act.
In sum, having a legally effective Personal Directive is essential because:
1) It can help ensure that the decision-maker you desire is left to make decisions impacting the quality of life of both you and your dependents, and
2) It allows you and your family to avoid the costs and uncertainty associated with a court appointment of a decision maker.
Enduring Power of Attorney
An Enduring Power of Attorney is an agreement signed between you (the “Donor”) and another individual (the “Attorney”) that dictates the ability of the Attorney to make financial decisions on your behalf, should you lose the capacity to do so yourself. The agreement is created while you still have the ability to make your own financial decisions.
An Enduring Power of Attorney agreement acts as a guide to the Attorney in conducting your basic financial affairs, such as paying bills, but can also address more complex matters, such as how to manage your investments. The Donor largely controls the extent of the decision-making powers of an Attorney. In Alberta, there is also the Powers of Attorney Act which helps protect a Donor’s assets. Generally, your Attorney has several statutory and common law obligations:
o to act in your best interests;
o to keep accurate records of transactions undertaken on your behalf; and
o to act in good faith when dealing with your financial matters and avoid situations where they have a conflict of interest
You should have an Enduring Power of Attorney because if you suffer a serious illness, you may become incapable of deciding financial matters for yourself. By preparing an Enduring Power of Attorney while you have capacity, you can ensure that your property is managed by someone you trust. If you do not have an enduring power of attorney agreement in place, one of your friends or family members may have to be appointed your trustee by the court. Not only will you have no control over who makes your financial decisions, but there is also considerable time and expense associated with appointing a trustee. Creating an Enduring Power of Attorney is a simple and relatively affordable way to plan ahead.