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.