Life is unpredictable, and there is no way to know what tomorrow holds with certainty. Events in our lives, such as sudden accidents or an unexpected illness, may leave us unable to make choices for ourselves. While good estate planning can’t prevent those events, it can provide peace of mind for the future. When you lose the capacity to make personal decisions, the appropriate legal preparations with an estate lawyer can protect your wishes.

Personal directives are one legal tool available to you and are worth understanding.

What is a Personal Directive?

Personal Directives are instruments with legal force in Alberta via the Personal Directives Act. With one of these documents, you (formally called the “Maker” of the directive) designate and empower a particular individual (your “Agent”) to make specific choices when you cannot. If you lose the capacity to manage your affairs, the Agent specified in a Personal Directive can make some of those choices for you.

Specifically, a Personal Directive empowers an Agent to make non-financial and personally-related choices for you. The Personal Directive itself can lay out specific instructions in these areas. Alternatively, the Agent makes decisions based on your best interests in a case without clear directions.

How Does a Personal Directive Become Effective?

Personal Directives only come into force when you lack the mental capacity to make decisions for yourself. There are two ways that this determination may take place.

First, you may designate someone during the creation of your Personal Directive. This person will be responsible for determining that you lack capacity and must obtain a “statement of incapacity” from a doctor, psychologist, or another qualified, licensed medical professional.

The second scenario occurs if you do not designate such a person when creating a Personal Directive. This option also activates if the person you selected cannot or will not fulfill their duties. Instead, two medical service professionals must certify that you’re incapacitated. At least one of these professionals must be either a physician or a psychologist.

What Do Agents Do When a Personal Directive is in Force?

When your Personal Directive comes into effect, agents can manage a range of things that aren’t related to your finances and can make certain personal choices for you. These choices relate to healthcare, medical treatments, living arrangements, social activities, and more.

The goal is to ensure quality of life and care following your wishes. Some of the aspects an Agent may decide include:

• What specific medical treatments or procedures you receive;
• Where you live and with whom; and
• What social or recreational activities you participate in, and so on.

Keep in mind that Personal Directives do not relate to any decisions concerning your finances or economic situation. For that, you will need an Enduring Power of Attorney.

What Can Happen Without a Personal Directive?

If you lose the capacity to make personal and medical decisions and do not have a Personal Directive, the situation can become more challenging for your family. In these situations, Alberta’s Adult Guardianship and Trusteeship Act applies. Your family must then go to court to apply for the appointment of a guardian for you. This time-consuming and expensive process creates an additional stressful burden on loved ones and the outcome of the process and decisions may not align with your desires.

Personal Directives Are Just One Piece of the Puzzle

Well-considered estate planning can help avoid the stressful situation of going to court for guardianship. However, remember that a Personal Directive is just one step towards a secure estate. Personal Directives don’t apply to financial decisions. To account for all your needs, you should consider working with an estate lawyer to draft an enduring power of attorney and a will. The combination of these three elements can provide for peace of mind.

Working with a legal team you can trust is essential during this process. Ensure that your wishes receive the consideration they deserve with instruments such as the Personal Directive and Enduring Power of Attorney. At Lypkie Henderson, our experienced team can provide you with insight, guidance, and the support necessary to plan for the future. Speak with us today to learn more.