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| Health & Wellness |
 Personal
Directives -
Preparing for the Future By Heidi Machl of Paralegals Plus The Alberta Government introduced legislation in December, 1997 called the Personal Directives Act. This Act allows adult Albertans to prepare a document called a “Personal Directive” which is a legal document that gives you the opportunity to choose another person (an “Agent”) to act on your behalf and make decisions for you when you cannot make them. Through the Personal Directive, you can provide written instruction of your decisions, allowing you to remain in control of your life in areas that are important to you. (Please note that you do not have to name an Agent in your Personal Directive. In this case, your Personal Directive would only contain specific instructions.) A Personal Directive should not be confused with a Power of Attorney. A Power of Attorney addresses financial issues, and a Personal Directive addresses all personal issues, such as health, accommodation, participation in social, educational or employment activities, non-financial legal matters (providing consent for the release of medical records, for example), and any other personal matter. The need for a Personal Directive may be short term (serious illness leaving one unable to make decisions for a short period) or for the remaining length of a person’s lifetime. Of course, making a Personal Directive is voluntary, however if you lose capacity without having written a Personal Directive, then you may require a Court appointed guardian. By naming your “Agent”, you can explain your values, wishes and beliefs to that person (for example, the fact that you do not wish to receive blood or blood products under any circumstances) and your Agent will then be in a position to deliver your instructions and make sure they are implemented. Your service providers such physicians, personal care providers, etc., will be able to explain the options to your Agent, and your Agent can then consider this information and his/her knowledge about you and your desires, before making the necessary decisions. Who Should You Select as Agent? Select someone you trust to act on your behalf in the giving of consent, the refusal to give consent, or the withdrawal of consent regarding any personal matter. This person must be18 years of age or older at the time the Personal Directive takes effect; have the mental capacity to make decisions on your behalf; and must be willing to act. You can name a primary Agent or several agents, keeping in mind that you should clearly indicate the situation in which the alternate agent(s) would make decisions.For example, when the primary Agent is unable or unwilling to act. What are the Duties of an Agent? Duties include Consulting with you (the “Maker”) when the Maker lacks capacity before making decisions to ensure the Maker contributes to the extent he or she is able; make personal decisions on behalf of the Maker and keep record of all personal decisions made on the Maker’s behalf. This record must be kept for two years after authority ceases; and not make decisions that are illegal, such as euthanasia or assisted suicide. Unless the Personal Directive provides clear instructions, the Agent cannot make decisions in the following areas; - Psychosurgery as defined in the Mental Health Act; - Sterilization that is not medically necessary to protect the Maker; - Removal of tissue for implantation in the body of another person, or for medical education or research; and - Participation in research or experimental activities if there is little or no potential benefit to the Maker. When Does the Agent Act? The Maker must lack “capacity” for the Agent to act and a “Declaration of Incapacity” must be made for the Personal Directive to begin. Such declaration can be determined and made by a person named in the Directive after a consultation with a physician or psychologist. If no person is named or the person named is unable or unwilling to make the determination; then two service providers, at least of one being a psychologist or physician, make a written declaration that the Maker lacks capacity. When Do the Agent’s Duties End? The Agents duties end when the Maker regains capacity or on the date or circumstance when the Maker has indicated that the Directive will be revoked or changed. The Agents duties may also end as determined by the court nor when the Maker dies. An Agent also has the option to step down as the Agent. What Are the Requirements of a Personal Directive? There is no specific requirement other than the Directive must be in writing (hand or typed), dated, signed by a witness in the Maker’s presence, and signed by the Maker in the presence of the witness. The witness cannot be the spouse of a person designated by the Maker as the Agent, the spouse of the Maker, the Agent, a person who signs on behalf of the Maker, if the Maker is physically unable to sign, or the spouse of a person who signs on behalf of the Maker. Do You Require a Lawyer? A lawyer is not required to write a Personal Directive, however, you may wish to consult a lawyer, or have your Personal Directive drawn up by a lawyer or paralegal. You may also wish to consult your family physician, pastor or any other person you feel would be able to help you to make sure your instructions are understood and clearly stated. This article was written with assistance from information provided by the Office of the Public Guardian and material contained in the Personal Directives Act. It is intended to give information about Personal Directives and is not intended to give legal advice for which a lawyer should be retained. The law and its interpretation by the Courts frequently change. Heidi is the principal of Paralegals Plus, which provides paralegal assistance to individuals in areas such as family law, incorporation & corporate maintenance, Wills, Personal Directives & Power of Attorneys. www.paralegalsplus.ca |