Create a Personal Directive in Alberta and Choose Who Will Make Your Personal and Healthcare Decisions
In Alberta, a Personal Directive is a legal document that allows you to appoint someone you trust to make personal and healthcare decisions on your behalf if you are ever unable to make them yourself. A Personal Directive:
Is voluntary and optional;
Names the person you choose to make decisions for you, called your agent;
Ensures your written instructions are followed if something happens to you;
Only comes into effect if you are found to lack capacity, meaning you cannot make your own decisions; and
Can be registered with the Office of the Public Guardian and Trustee (OPGT), if you and your agent consent to including your contact information in the registry.
Free Consultation
If you have any questions about making or revoking a Personal Directive, please contact our office for a free consultation at: (403) 288-0009 or at: murray@bodnaruklaw.com
Subjects of Personal Directives
Your instructions can be about any or all personal matters that are not financial, such as:
- medical treatments you would or would not want;
- where you would like to live;
- with whom you would like to live;
- who will care for your children if they are minors;
- choices about your other personal activities, including recreation, social activities, diet, and dress; and/or
- any other personal and legal issues.
When our office drafts your Personal Directive:
- You decide who will be your agent or agents;
- You can have more than one agent, and you can choose the areas they will have authority over your personal care and healthcare decisions; and
- Your wishes are written down to ensure there are no questions about what you want if you lack the capacity to make your own decisions.
If you do not have a Personal Directive
If you do not have a personal directive and something happens where you are unable to make your own decisions:
- You do not get to choose who makes decisions for you;
- A healthcare provider may pick your nearest relative to make decisions for you about healthcare and temporary residential placement;
- A family member or friend may need to go to court to be appointed as your Guardian so they can make personal decisions for you, which is a more expensive and time-consuming process.
Capacity to Make a Personal Directive
Any person who is at least 18 years of age and understand the nature and effect of a Personal Directive may make a Personal Directive.
Requirements of a Personal Directive
A Personal Directive must:
- be in writing;
- be dated;
- be signed at the end by the donor in the presence of a witness, (or if the donor is physically unable to sign the directive, by another person on behalf of the donor, at the donor’s direction and in the presence of both the donor and the witness); and
- be signed by the witness in the presence of the donor.
The following persons may not sign a Personal Directive on behalf of the donor:
- a person designated in the Directive as an agent; or
- the spouse or adult interdependent partner of a person designated in the Directive as an agent.
The following persons may not witness the signing of a Personal Directive:
- a person designated in the Directive as an agent;
- the spouse or adult interdependent partner of a person designated in the Directive as an agent;
- the spouse or adult interdependent partner of the donor;
- the person who signs the Directive on behalf of the donor; or
- the spouse or adult interdependent partner of a person who signs the Directive on behalf of the donor.
Bringing a Personal Directive into effect
A Personal Directive has effect with respect to a personal matter only when the donor lacks capacity with respect to that matter. A donor lacks capacity:
- when the person or persons designated in the Personal Directive to determine the donor’s capacity makes a written Declaration of Incapacity that the donor lacks capacity, after consulting with a physician or psychologist; or
- if the Personal Directive does not designate a person to determine the donor’s capacity, or the person designated in the Personal Directive to determine the donor’s capacity is unable or unwilling to do so or cannot be contacted after every reasonable effort has been made and when two medical practitioners, at least one of whom is a physician or psychologist, make a written Declaration of Incapacity that the that the donor lacks capacity to make decisions.
A physician or psychologist who determines a donor’s lack of capacity must keep a written record of the determination of a lack of capacity and the name of any other person involved in making the determination.
When a determination of a lack of capacity has been made, the person making the determination must provide a copy of the declaration to the donor, the donor’s agent, and any other person designated in the donor’s Personal Directive and must advise them:
- that a determination has been made that the donor lacks capacity; and
- that the donor may make an application to the court for a review of the determination.
When a Personal Directive ceases to have effect
A Personal Directive ceases to have effect in the following circumstances:
- when a determination is made that the donor has regained capacity to make decisions;
- on the donor’s death;
- on the revocation of the personal directive; or
- on the determination by the court that the Personal Directive ceases to have effect.
Determination of regained capacity
When a Personal Directive is in effect, if the agent believes there has been a significant change in the donor’s capacity, the agent must:
- consult with a medical practitioner who provides healthcare services to assess the donor’s capacity; and
- if the agent and the medical practitioner agree that the donor has regained capacity to make decisions with respect to that or other personal matters, a Determination of Regained Capacity Form must be completed, stating the donor has regained capacity and can now make decisions.