Personal Directives ("Living Wills") and Enduring Powers of Attorney
PERSONAL DIRECTIVES AND ENDURING POWERS OF ATTORNEY
Whenever we are asked to create a person's Will, we always suggest that they consider having the following two personal documents created to deal with personal and financial decisions should the person lose the ability to make decisions on their own .
1. Personal Directive -- Making personal decisions when you have lost mental capacity
In 1997, the Alberta Legislature enacted the Personal Directives Act, which permits the person granting a document call a Personal Directive (the “maker”) to appoint one or more other persons (“agent(s)”) to make certain personal decisions for the maker, when the maker has lost the capacity or ability to make or communicate such decisions on his or her own behalf. The agent may or may not be the person who determines when the maker’s capacity is lost. Normally such personal decisions relate to what medical or health related treatments the maker will or will not undergo, where the maker will reside, and other non-financial matters. Financial matters are dealt with by other means, often by way of an Enduring Power of Attorney or Court Order .
In 1997, the Alberta Legislature enacted the Personal Directives Act, which permits the person granting a document call a Personal Directive (the “maker”) to appoint one or more other persons (“agent(s)”) to make certain personal decisions for the maker, when the maker has lost the capacity or ability to make or communicate such decisions on his or her own behalf. The agent may or may not be the person who determines when the maker’s capacity is lost. Normally such personal decisions relate to what medical or health related treatments the maker will or will not undergo, where the maker will reside, and other non-financial matters. Financial matters are dealt with by other means, often by way of an Enduring Power of Attorney or Court Order .
2. Enduring Power of Attorney -- Conducting your financial affairs when you have lost mental capacity An Enduring Power of Attorney is granted by a person to permit another person or other persons to manage his or her property and financial affairs. It can either come into effect on execution, or in the event the grantor becomes mentally incapacitated or infirm. It is an alternative to the somewhat cumbersome and often expensive alternative to making the required Court application to have a person declared a dependent adult and have a trustee of his or her affairs appointed.
Generally, a Power of Attorney is a document whereby the “donor” grants to the “attorney” the power to act on behalf of the donor, normally for the purposes of undertaking general or specific legal transactions. The Power of Attorney is usually general in nature, normally does not require specific authority for any individual transaction, and is used in circumstances where the donor is unavailable to take the required steps on his or her own behalf. A Power of Attorney is effective only so long as the donor has “capacity”, upon the donor losing capacity the Power of Attorney is no longer effective.
Changes to the Alberta Power of Attorney Act have enabled persons to grant an “Enduring Power of Attorney” which, unlike a general Power of Attorney, remains in force during the period of incapacity.
The “attorney” under and Enduring Power of Attorney is typically a person that the donor trusts to represent the donor’s interests during the period of “incapacity”, such as a spouse or other relative. The Enduring Power of Attorney can be revoked at any time by the donor prior to incapacity, and can come into effect immediately or upon the occurrence of a given event, such as incapacity. The donor may name one or more persons on whose written declaration the event triggering the operation of the Power of Attorney is deemed to have occurred, or the Enduring Power of Attorney may come into effect upon one or two physicians determining that the donor is incapacitated.
It should be emphasized that the information provided above is general in nature. There are many matters which should be considered when granting either an Enduring Power of Attorney or Personal Directive. Should you be interested in pursuing these matters further, do not hesitate to contact me.