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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss Personal Directives and Enduring Powers of Attorney and how each applies in Alberta.
While both are documents that you can make to plan for your future, there are some important differences between them. Personal Directives apply only to personal matters. That is, anything of a non-financial nature that relates to the person, such as healthcare services and where you live. A Power of Attorney, or Enduring Power of Attorney, deals only with financial and estate matters during your life.
Let us first look at Personal Directives
Simply put, a Personal Directive allows you to determine in advance who will make personal, non financial decisions, on your behalf if you ever lose the mental capacity to make these decisions due to illness or injury.
Writing a Personal Directive can be an important consideration for your future, as the law in Alberta does not allow another person to automatically make decisions for you if you become incapacitated Creating a Personal Directive allows you to specify the person, or persons, of your choice who are legally entitled to make decisions on your behalf in the event that you become mentally incompetent.
The person you name to make your personal decisions is called an agent. Prior to naming an agent, you should consult with the individual you are considering and inform them of your wish to name them as your agent. You should also discuss your own wishes, beliefs and values so that they can represent you fully when you can no longer express yourself coherently.
Please note that the agent named in your Personal Directive is under no obligation to accept the responsibilities of an agent. For this reason it is also a good idea to name an alternate agent in case the person you choose is unable or at some point becomes unwilling to act as your agent.
Here are some other things you need to know about writing a Personal Directive.
A lawyer is not required to make a Personal Directive and there are no specific forms that you must complete. For your document to be legal you must meet the following requirements: you must be mentally competent at the time you sign your Personal Directive. A Personal Directive can simply be handwritten or typed. It must be dated, signed by you in the presence of one witness, and signed by that witness in your presence. It is important to note that your witness can never be your spouse or adult interdependent partner, your agent, or the spouse or adult interdependent partner of your agent.
We will now look at Enduring Power of Attorney
While a Personal Directive allows you to appoint someone to make your personal decisions, an Enduring Power of Attorney enables you to appoint someone to deal with your financial affairs.
You can specify whether you wish the Enduring Power of Attorney to take effect immediately or to take effect only in the event that you become mentally incapable of making financial decisions for yourself. You should discuss your Enduring Power of Attorney in advance with the person you have named as your attorney to ensure that he or she agrees to act as your attorney.
The Enduring Power of Attorney gives the person you have named as the attorney a lot of power and responsibility with respect to your finances, so you both must give careful consideration to the implications of an Enduring Power of Attorney before signing the document. You may wish to appoint an alternate attorney in case the person you choose is unable or unwilling to act as your attorney.
Here are some things you need to know about writing an Enduring Power of Attorney.
A lawyer is not required to make an Enduring Power of Attorney and there are no specific forms that you must complete. You must be mentally competent at the time you sign the Enduring Power of Attorney. An Enduring Power of Attorney can simply be hand written or typed. It must be dated, signed by you in the presence of one witness, and signed by the witness in your presence. It is important to note that your witness can never be your spouse or adult interdependent partner, your attorney, or the spouse or adult interdependent partner of your attorney.
When writing your Personal Directive and your Enduring Power of Attorney you should consider the following: although your agent and your attorney do not need to live in Alberta it is easier for them to look after your interests when they live close to you.
It may also be a good idea to ensure that your agent’s and attorney’s decisions are reviewed by a third party from time to time. Making your agents and attorneys accountable to someone else will give you further assurance that they are making decisions in accordance with your wishes.
Please note that as long as you remain competent you can cancel your Personal Directive or your Enduring Power of Attorney. However, while you are mentally incompetent, you cannot cancel your document; only an order from the Court of Queen’s Bench can do so.
If you would like to obtain further information on the Personal Directives Act you can purchase an information kit called “Choosing Now for the Future” from the Queen’s Printer Bookstore. There is a ten dollar charge for the three booklets in the kit. In Calgary, you can call the bookstore at 403-297-6251. In Edmonton, please call 780-427-4952. For those outside of Calgary and Edmonton, call toll free by first dialing the government Rite Line at 403-310-0000.
As well, you can download these booklets from the internet at the following website at no cost. The address is www.humanservices.alberta.ca/guardinship-trusteeship/opg-personal-directive.html
You can also call the Office of the Public Guardian to speak with a personal Directives Specialist. In Calgary please call 403-297-3364. In Red Deer, please call 403-340-5164. In Edmonton please call 708-427-0017. Again, call toll free by first dialing the government Rite Line at 403-310-0000.