Personal Directives and Powers of Attorney
Personal directives and powers of attorney are two very important documents. These documents appoint substitute decision-makers in the event you lose capacity, or need someone to assist you in making certain decisions. These documents are as important as a Will, because they guide individuals you’ve appointed to make important decisions for you while you are still alive.
PERSONAL DIRECTIVE
A personal directive is a written document, signed by you, the maker, which appoints an Agent to make personal decisions for you in the event that you lose capacity. The document must be signed in front of a witness and also signed by that witness in your presence. The witness cannot be the Agent or the spouse or adult interdependent partner of the named Agent.
A personal directive is completely optional and voluntary.
You should name an Agent that is trustworthy, knows your wishes and values, and whose judgment you trust.
The personal directive will also specify what kinds of decisions the Agent can make on your behalf. These areas of decision making include health care and residential issues.
An Agent does not have authority to make decisions on the following matters unless the Personal Directive contains clear instructions that the Agent may do so:
- Psychosurgery, which is any procedure that removes or destroys brain tissue, or inserts electrodes for the purpose of altering behavior or treating psychiatric illness;
- Sterilization that is not medically necessary to protect the maker’s health; and
- Organ or tissue donation pursuant to the Human Tissue and Organ Donation Act or for medical education or research purposes.
Currently, an Agent is prohibited from making decisions regarding assisted suicide/death or euthanasia.
Moreover, an Agent has a duty to consult the maker regarding their decision. The extent of the consultation depends on the capacity and health of the maker.
An Agent must follow clear instructions the maker provided in the personal directive that relate to the decision to be made.
If the Personal Directive does not contain clear instructions regarding a specific decision, an agent must make the decision that the Agent believes the maker would.
These documents can be registered with the Office of the Public Guardian and Trustee in Alberta so that healthcare providers can easily find your Agent if something happens to you and you lose capacity.
If the personal directive is in effect, an individual may make a complaint to the Public Guardian if that individual has reason to believe that the Agent is not following the Personal Directive or failing to fulfil their duties as an Agent, and if this harm is likely to cause harm to the physical or mental health of the maker.
POWER OF ATTORNEY
There are multiple types of Powers of Attorney. In all of these documents, the person making the document, the donor, appoints someone else, the Attorney, to make financial decisions on their behalf.
The powers granted to the Attorney by the Donor are usually extensive: they include decisions such as paying bills; accessing your bank accounts; paying taxes; stepping into your shoes if you run a business and, if the Power of Attorney states, to sell, mortgage or buy property.
These documents must be in writing, dated, and signed. Another individual may be able to sign the enduring power of attorney if you are physically unable to do so.
A donor can revoke a Power of Attorney at any time, as long as the donor has capacity.
ENDURING POWER OF ATTORNEY
The most common type of Power of Attorney that our office sees is an “Enduring” Power of Attorney. This means that the Power of Attorney is valid if the donor loses capacity after signing the document. The donor must have capacity at the time he or she signs the Enduring Power of Attorney.
An Enduring Power of Attorney must be signed by the donor and the witness in the presence of each other. The Attorney named in the document cannot witness the donor’s signature, nor can his or her spouse or adult interdependent partner.
The Attorney named in the Enduring Power of Attorney must be at least 18 years old at the time the donor signs the Power of Attorney.
IMMEDIATE POWER OF ATTORNEY
Sometimes an individual needs an Attorney to assist them immediately. In this case, an immediate Power of Attorney may be appropriate. For example, if a spouse is in the military and deployed, they may need their spouse to be able to sign off on certain financial documents in their absence. Or, an individual with mobility issues may require assistance in paying bills or other day-to-day financial needs.
SPRINGING POWER OF ATTORNEY
A springing Enduring Power of Attorney comes into effect upon you losing capacity. Usually a springing Enduring Power of Attorney will specify that two doctors declare you have lost mental capacity.
Other Considerations
Like an agent in a personal directive, you should pick someone you trust, who is responsible and organized to be your Attorney. A background in finance, accounting or law is an asset for an Attorney, but not a requirement.
The Attorney must keep good records of any decisions they make while acting under a Power of Attorney. An individual may bring an application to the Court that will order the Attorney to provide a full accounting if there are concerns about the Attorney’s actions.
If you have questions regarding a Power of Attorney or Personal Directives, contact our office today.
Written by Jillian Gamez