Being an Agent – How Can it Go Wrong?

How can it go wrong?

Top 5 questions about the most common problems

What if I have disagreements with another Agent?

If the Personal Directive does not provide instructions about how to resolve disagreements, the Personal Directives Act states that the decision of the majority of Agents must be followed. If no majority can be reached, the Agents may seek help to reach a consensus by consulting with others, such as family members or a professional. Agents may also
apply to the courts to give direction.

When Agents are named jointly and they are unable to agree on who will communicate decisions (for example: to doctors, caregivers, family, or friends) the Personal Directives Act states that the Agent listed first is authorized to communicate decisions, unless the Personal Directive states otherwise.

What if family members, friends, or service providers do not agree with the decisions that I am making?

How you proceed within the terms of the Personal Directive is up to you, but keeping the peace may help avoid even more problems. Setting a plan and then sharing that strategy with all the affected loved ones at the same time may build trust and provide a setting where they hear each other ask questions and get answers. Keeping all the affected loved ones informed also helps develop confidence in your actions. Ultimately, however, disputes may have to be settled in court.

If you are the Agent and the maker’s loved ones or service providers do not agree on how to proceed, you may also consider obtaining the advice of a lawyer.

What if I do not follow the exact directions in the Personal Directive?

An Agent must follow the wishes of the maker as expressed in the Personal Directive. Sometimes loved ones are not happy with the decisions the Agent is making, but the Agent has the obligation to proceed in accordance with the instructions in the Personal Directive, regardless of others.

That said, the wise Agent keeps the loved ones up to date and, where possible, asks them for input. If the Personal Directive is a little unclear on a particular matter, you may choose not to proceed without either the written agreement of the immediate family or a court order. (Remember – you can always ask a court for advice and direction.)

As the Agent, if you fail to act reasonably or if you act in a way that is not at all consistent with the Personal Directive, interested parties can take legal action to find a solution. When you 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 up to $10,000.

If the Personal Directive is a little unclear on a particular matter, you may choose not to proceed without either the written agreement of the immediate family or a court order.

I feel that the maker would want a certain decision, but I am not comfortable making that decision. Can I refuse to make the decision and resign as Agent?

Refusal by an Agent to make a decision after a Personal Directive has been brought into effect means that an alternate Agent would have to act. If no other Agent is named, then, in a medical emergency, a health care practitioner would provide medical services without consent. The health care practitioner, however, would have to inform either the nearest relative or legal representative. If these people could not be reached, the Office of the Public Guardian would have to be contacted.

If disagreement occurs during an emergency, remember that you have the final authority. A doctor or caregiver is not entitled to make his or her own decision instead of yours.

What if someone disagrees with a decision I have made and challenges that decision?

Any complaints about the actions or inactions of one or more Agents can either be taken to court or to the Alberta Office of the Public Guardian. This office will investigate only those complaints that involve an Agent failing to comply with the Personal Directive or the duties of an Agent and causing physical or mental harm to the maker. All other complaints must be resolved through a court application. See question 2.4 for more detail.

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

If a complaint warrants an investigation, the Office of the Public Guardian will formally notify the Agent and provide the Agent with the opportunity to present his or her side.

If disagreement occurs during an emergency, remember that you have the final authority. A doctor or caregiver is not entitled to make his or her own decision instead of yours. You are the Agent.

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