Being an Agent – Should I Agree to the Job?

Should I agree to the job?

Top 10 questions about what’s involved in being an Agent

 

What is an Agent?

An Agent is the person named in a Personal Directive who will make personal decisions on behalf of the maker, when the maker no longer has the mental capacity to make those decisions for him- or herself.

Personal decisions include the giving of consent, the refusal to give consent, or the withdrawal of consent regarding any personal matter.

A personal matter, as defined in the Personal Directives Act, is anything of a non-financial nature that relates to an individual, including:

  • health care;
  • accommodation;
  • with whom the person may live and associate;
  • participation in social, educational and employment activities;
  • non-financial legal matters such as providing consent for the release of medical records; and
  • any other personal and legal decisions (for example, the continued care and education of a minor for whom the maker is the guardian).

An Agent does not make decisions about financial issues; for that, one needs a separate document called a Power of Attorney.

Who can be an Agent?

Any adult can be an Agent. However, being an Agent can be a complex, difficult job. An Agent is responsible for all the maker’s personal affairs. A lot of work is involved and the law expects Agents to meet very high standards.

Accordingly, an Agent should:

  • be responsible and trustworthy;
  • know the maker well enough to understand and interpret his or her instructions; and
  • have the time and willingness to do the job.

Another factor to consider is proximity. It is most convenient if the Agent lives in the same city, or at least the same province, as the maker. This factor, however, should not overshadow the other criteria. A person who is trustworthy, capable, and willing is more suitable that someone who is not, even if s/he lives on the other side of the country.

How difficult is it to be an Agent?

It depends. Being named as an Agent can be a big undertaking requiring a considerable amount of time and energy, for example, if the mental incapacity is prolonged or irreversible. In other instances, however, it can be quite brief and straightforward, for example, when a person has been temporarily injured but is expected to make a full and speedy recovery.

In any event, being an Agent often requires a considerable amount of diplomacy. As an Agent you are making very personal decisions about another individual. It may happen that the person’s family members, friends, and loved ones have differing opinions on what is best. As Agent, you will hear, and deal with, all these opinions.

However, as Agent, you will make the final decisions.

I have just been asked to be an Agent. Do I have to agree?

If someone asks you to be an Agent and you don’t want to do the job, you can simply say no. No one can force you to take this job.

Since no one knows what the future will bring (how long will the maker’s incapacity last; how many decisions will I have to make; will there be familial strife?), it is best to agree to act as Agent only if you feel you can do the job well and give it adequate time and attention. Be sure also to consider family dynamics.

If you agree to be an Agent, you will be entrusted to handle the personal affairs of the maker and you owe it to him or her to make sure you know what is required of you.

What are the duties of an Agent?

While the responsibilities of an Agent may vary as needed, the basic duties include:

  • confirming that the Personal Directive is in effect;
  • consulting with the maker before making decisions to ensure that the maker contributes to the extent that s/he is able;
  • making the personal decisions of the maker (for more details see Being an Agent – What Happens When…) for as long as the maker remains incapacitated;
  • monitoring for change in capacity so that, if the maker regains capacity, the appropriate paperwork can be completed (for more details, see Being an Agent – What Happens When…?);
  • keeping a record of personal decisions you made, which must be retained for the entire duration of the maker’s incapacity and for two years thereafter;
  • on request, providing a copy of the Personal Directive and the record of decisions to the maker, and, in the case of a particular matter to the maker’s lawyer, or other representative (including any other Agent) that has authority with respect to that particular matter.

For all decisions, Agents are also encouraged to consult with people who are knowledgeable in the area of concern, as well as those who may be affected by the decision, such as the maker’s family and friends.

When you, as an Agent, act with reasonable effort and in good faith, there is no liability. If, however, you willfully destroy, conceal, or alter a Personal Directive, or a document revoking the Personal Directive, you can be fined. The terms “reasonable effort” and “good faith” depend on the individual circumstances of the situation. It is not possible to define these terms without first considering the particular case.

I have just agreed to be someone’s Agent. What information should I get right now?

Here are some kinds of information you should consider requesting:

  • a notarized copy of the Personal Directive, so that you have it when the time comes;
  • the location of the original Personal Directive;
  • whether or not the Personal Directive has been registered in the (Alberta Personal Directive Registry;);
  • a detailed discussion with the maker about the instructions in the Personal Directive, in order to understand the maker’s values and beliefs. This will help you in making decisions later, because it can be difficult to anticipate all circumstances that could occur;
  • details about how the maker’s loss of mental capacity will be diagnosed;
  • details regarding whether anyone will be reviewing your decisions as Agent (and whom you therefore need to keep explicitly informed);
  • clarification regarding whether you will be paid a fee for your services as Agent;
  • the names and contact details of any other people who have a copy of the Personal Directive;If you agree to be an Agent, you will be
    entrusted to handle the personal affairs of the maker and you owe it to him or her to make sure you know what is required of you.
  • the names and contact details of any people that you are to notify when the Personal Directive comes into effect; and
  • the name and contact details of who has been named as an Attorney under any Power of Attorney made by the maker.

If you agree to be an Agent, you will be entrusted to handle the personal affairs of the maker and you owe it to him or her to make sure you know what is required of you.

I have just agreed to be someone’s Agent. Is there anything I should ask the maker to do now in order to make my job easier when the time comes?

You should consider asking the maker to:

  • keep you up-to-date on changes in the maker’s wishes;
  • talk to family members, the beneficiaries, or anyone who may be affected by your appointment as Agent. Explain what his or her plans are, as this may prevent problems for you later;
  • keep you apprised of any updates or changes to the Personal Directives (including providing you with updated notarized copies);
  • if it has not yet been done, register the Personal Directive in the Alberta Personal Directive Registry;
  • keep a card in his or her wallet indicating that you are the Agent (this could help in an emergency); and
  • if the maker regularly spends time outside of Alberta, complete a similar document that will definitively be valid in that jurisdiction (in case the Alberta Personal Directive is not valid there).

Can I be the Agent if I am also the Attorney under this person’s Power of Attorney?

Yes. In addition, you can also be the Executor under the person’s Will.

An Agent can only take a fee if the maker has provided for this in his or her Personal Directive. If the Personal Directive does not state that the Agent is to be paid for his or her service, the Agent may not take a fee.

Can I get paid for being an Agent?

Often an Agent does not accept a fee. This is common if the Agent is a spouse, adult interdependent partner, family member, or close friend.

Any expenses the Agent incurs while performing his or her duties can always be recovered by the Agent. Examples of expenses are photocopying, postage, and long-distance telephone calls.

An Agent can only take a fee if the maker has provided for this in his or her Personal Directive. If the Personal Directive does not state that the Agent is to be paid for his or her service, the Agent may not take a fee.

I agreed to be an Agent, but now I have changed my mind. Can I get out of the duties?

If the Personal Directive is not yet in effect, you can change your mind at any time. Let the maker know as soon as possible so that s/he can make a new Personal Directive, if required.

You can also resign later, after the person has lost mental capacity. If there is a co-Agent, s/he can take over. If there is no co-Agent, and if the Personal Directive identifies an alternate Agent, then that person may take your place. If all of the possible Agents named in the Personal Directive are unable or unwilling to act, the Personal Directive will cease to have effect and someone will have to apply to the courts to become the guardian of the maker under the Adult Guardianship and Trusteeship Act (this is known as a Guardianship Application).

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. June 2013.
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