The first thing that typically comes to mind when people think about estate planning is a will. Although a legally valid and up-to-date will is a necessary component of estate planning, it’s far from sufficient.
A will only protects your interests after you die; it does not protect your interests if you lose capacity and are unable to make personal decisions about your care and well-being. No one wants to become dependent on others, but the reality is that many of us will.
Sometimes called a ‘living will,’ a personal directive is a legal document that you create in the event that you are unable to make your own personal decisions in the future.
Personal Directive Explained
Unlike a will that takes effect once you have passed, a personal directive is a document that allows a person to appoint someone, called an agent, to make medical and personal decisions on their behalf if they are unable to do so for themselves. A personal directive is:
- Optional, voluntary, and highly recommended
- Someone that ensures your written instructions are known in case something happens to you
- Only taken into effect if you are found to be unable to make your own decisions
The law in Alberta restricts anyone, not even your spouse, adult interdependent partner, or a close relative, from automatically making decisions for you. You can gain more control over your future personal matters by creating a personal directive.
Many aspects of life must be addressed when creating this type of document if you lose the ability to make those decisions on your own. Each document can be tailored to the individual’s wants and needs.
The following are some examples of decision-making powers that will be drafted into personal directives:
- Health Care
- Accommodations
- Personal decisions
Health Care
Because of the broad scope of medical treatment available in today’s world, the person you choose will have to make several decisions like:
- What medical treatment you receive or don’t receive
- What types of medicines are administered
- Whether special lifesaving procedures are used to prolong life
- Experimental treatments
Some people decide to draft their specific decision wishes. Others leave a general guideline for their chosen individual. The decision is yours to make, and it depends on your existing relationship with the decision-maker.
Accommodations
If you are unable to live at home, your agent can make the decision for you as to what type of facility or residence you will live in. Whether this will be in senior care, assisted living or with another loved one.
Personal Decisions
If you lose the ability to make decisions for yourself, someone else must make them for you daily. Examples may include the following:
- People you associate with
- Types of activities you engage in
- Any sport or exercise you enjoy
- Religious services you attend
What Is a Declaration of Incapacity?
“Capacity” is a legal term that refers to your ability to comprehend the information relevant to making a personal decision as well as your understanding of the foreseeable consequences of that personal decision.
A capacity assessment is only performed if there are reasonable grounds to believe the adult lacks the ability to make their own decisions.
A healthcare professional known as a capacity assessor verifies that the adult understands the information they should consider before making a decision, and what might happen if they select one option over another.
How Does Your Agent Make Decisions?
Once a written declaration of incapacity is issued, your agent must follow specific procedures for each personal decision made on your behalf.
- Before making any personal decisions, your agent must first consult with you.
- Next, your agent must adhere to any specific instructions contained in your personal directive.
- If your personal directive lacks specific instructions, the agent must make the decision they believe you would have made based on their knowledge of your desires, beliefs, and values.
- Finally, if your agent is unaware of your preferences, beliefs, or values regarding a particular decision, they must make the decision they believe is in your best interests.
Ready to Write a Personal Directive?
Estate planning can be a difficult subject for you and your loved ones to discuss. However, planning is more than just preparing for difficult situations. Effective estate planning also involves safeguarding your interests and ensuring that your loved ones can carry out your wishes.
Making plans for the future makes life easier for you and your loved ones. Lawyers at KH | Dunkley Law Group can help you understand the complexities of the various personal directive options and draft one that is tailored to your specific needs, contact us if you’d like to start preparing a personal directive. View our flat fee pricing for more information.
This memorandum is for informational purposes only, does not constitute legal advice or an opinion, and does not create a solicitor-client relationship. This is an overview and is not intended to be a complete and exhaustive explanation of the concepts covered. This information may become inaccurate based on passage of time or changes in the law. Nothing herein should be relied upon without seeking the advice of a lawyer.
