Being an Agent: The Time Has Come: Where Do I Begin?

The time has come: where do I begin?

Checklist: 10 steps upon the incapacity of the maker

While being an Agent does not have to be difficult, there are many details and you need to be organized. Here are the ten most common steps that an Agent should take when the maker loses capacity.

The sequence is not written in stone – it will depend on the situation. No two situations are exactly the same. Many of the steps will occur at the same time. It may seem like a lot to do in a short time, but you will find that one step leads to another. You may also wish to consider talking to someone you know who has been an Agent.

You may wish to start a filing system, such as a binder, to keep track of all the matters that arise and the decisions that you make.

Locate the Personal Directive and read it as soon as possible.

Many people keep their original Personal Directive in a safety deposit box. To look in the safety deposit box, make an appointment with the bank. Take the safety deposit box key, your copy of the Personal Directive, and your own identification. Tell the manager of the financial institution that you are the Agent and are looking for the original Personal Directive. If the Personal Directive is there and names you as Agent, the bank should let you take the document.

If you cannot find the deposit box key, the box can be drilled open for a charge.

Some people leave the Personal Directive with their lawyer. Problems can arise if they have not kept in touch with the lawyer or notary, who may have died, or moved, or sold the business. If this has occurred, you can contact the Law Society of Alberta to see if another lawyer has taken over the file.

Once you have the original, you may wish to have numerous notarized copies made, as most service providers will want to see (and often keep) a notarized or certified copy for their own records.

Ensure that there is a proper Declaration of Incapacity.

In order for a Personal Directive to come into effect, the maker’s incapacitation must be proven. This is done with a document known as a Declaration of Incapacity.

A Declaration of Incapacity is a written document that confirms that the maker no longer has the mental capacity to make personal decisions on his or her own behalf. This form is available from hospitals, care facilities, and doctors. It is also available for download at: http://humanservices.alberta.ca/guardianshiptrusteeship/opg-personal-directives.html.

The provisions of the Personal Directive may determine who is to sign the Declaration of Incapacity. If the Personal Directive names one or more people who are to determine capacity, the named person(s) must sign the document, after consulting with a physician or psychologist (who must also sign the document). If the Personal Directive does not indicate who is to make the Declaration, then the form must be completed by two medical practitioners, at least one of whom is a physician or psychologist.

Ensure that all portions of this document are completed and clearly filled out and that it is dated and signed appropriately. Also be sure that the document is consistent with the provisions of the Personal Directive.

A Declaration of Incapacity is a written document that confirms that the maker no longer has the mental capacity to make personal decisions on his or her own behalf.

Immediately inform everyone who needs to know.

When a Declaration of Incapacity is issued, make sure that you inform all relevant parties. The Personal Directive may provide a list of people to notify or the maker may have told you verbally. Keeping everyone informed helps develop confidence in your actions and may help avoid later complications.

If not included in the list above, within a reasonable amount of time, the Agent must notify the maker’s nearest relative. The ordered list of nearest relatives is:

  1. spouse or adult interdependent partner;
  2. son or daughter;
  3. father or mother;
  4. brother or sister;
  5. grandfather or grandmother;
  6. grandson or granddaughter;
  7. uncle or aunt; and
  8. nephew or niece.

Within this list: (i) a whole blood relative is preferred to half blood relative of the same description, (ii) in any category, the elder is preferred to a younger relative, and (iii) gender is irrelevant.

If the maker has indicated in the Personal Directive that the person who, in accordance with this list, would qualify as the nearest relative is not to be notified, do not notify that person. Move to the next person in the list and notify her or him instead.

Every notice should be dated and in writing and should indicate both that the Personal Directive is in effect (a Declaration of Incapacity has been issued) and that the maker can challenge this Declaration of Incapacity by application to a court.

When a Declaration of Incapacity is issued, make sure that you inform all relevant parties..Keeping everyone informed helps develop confidence in your actions and may help avoid later complications.

Find out details about any Power of Attorney the maker may have made.

There are several reasons for doing this.

  • If you are also the Attorney appointed under a Power of Attorney, you will want to know this as soon as possible, as you may have some immediate financial decisions to make.
  • Assuming you are not the Attorney, depending on the circumstances, you may have to start working very closely with this person on issues affecting the maker. For example, if the maker needs to be placed in a care facility, the financial aspects of that decision will fall to the Attorney and, although you are responsible for personal aspects only, you will require input.
  • Even if immediate collaboration is not required, collaboration will likely be required at some point. Start building a working relationship now.

Find out details about the maker’s Will.

There are two main reasons for doing this.

  • If you are also the Executor appointed under the Will, you will want to address immediately any potential conflict issues regarding your roles and actions.
  • If you are not the Executor appointed under the Will, the Will (and/or associated documentation) may contain information that can help you in your decisionmaking while the maker is still alive.

Determine the decisions that need to be made immediately.

The job of Agent can be brief or it can go on for many years. Often, it is impossible to tell at the beginning which it will be. Either way, keeping organized and on top of your responsibilities will be key to your success.

Go through the maker’s important documents. Make a list of the decisions that need to be made and the timelines in which to make them. Determine which, if any, decisions should include input from the maker and or the maker’s family.

Make the necessary decisions.

There is no universal order to decisions. In the beginning, you will likely find that many decisions need to be made in quick succession and that these decisions all affect each other. Try to stay organized. You may wish to record your reasons for your decisions so that you can refer to them later, if need be.

Remember that, in terms of making decisions, your responsibilities are to:

  • consult with the maker before making decisions to ensure that the maker contributes to the extent that s/he is able;
  • follow any clear instructions provided by the maker in the Personal Directive;
  • if there are no clear instructions relevant to a particular situation, make the decision that you feel the maker would have made in the same circumstances, based on your knowledge of the maker’s wishes, beliefs and values; and
  • if you do not know the wishes, beliefs, or values of the maker in a particular circumstance, make a decision based on the maker’s best interests.

Also remember that you can consult the maker’s family and loved ones and, if required, you can seek advice and direction from either the Office of the Public Guardian or a court.

Stay aware of changes in the capacity of the maker.

During the period of incapacity, Agents should only make those personal care decisions that the maker cannot make himself or herself, while service providers must make reasonable efforts to determine whether the maker continues to lack capacity. The maker might, for example, be incapable of making a serious health care decision, but still be able to make his or her own choices about routine day-to-day matters.

In addition, if it appears to an Agent that there has been a significant change in the maker’s capacity (meaning “an observable and sustained improvement that does not appear to be temporary”), the Agent must:

  • consult with a service provider who provides health care services; and
  • assess the maker’s capacity.

If the Agent and service provider agree that the maker has regained capacity to make decisions with respect to that or other personal matters, make a determination as prescribed by law (this is known as the “Determination of Regained Capacity Form”). If the Agent and the service provider do not agree, the Agent must then have two service providers, at least one of whom is a physician or psychologist, assess the maker’s capacity.

Also remember that you can consult the maker’s family and loved ones and, if required, you can seek advice and direction from either the Office of the Public Guardian or a court.

Keep proper records.

One of your duties as Agent is to keep complete and detailed records of the decisions you make. There are numerous reasons for this.

  • Under the terms of the Personal Directive you may have to provide a report to the maker on a regular basis.
  • Under the terms of the Personal Directive, you may have to provide a report to one or more other interested parties on a regular basis.
  • If someone else has evidence suggesting mismanagement or believes that you are mentally incapable of being an Agent, they may ask the Office of the Public Guardian or a court to review your records.
  • Regardless of the length or complexity of the task, keeping organized will help make your job easier.

Keeping complete and detailed accounts includes:

  • documenting the date of your first decision;
  • keeping a list of all decisions made during the period of the maker’s incapacity;
  • keeping all documentation relating to all attempts for a Determination of Regained Capacity;
  • keeping a copy of the Personal Directive and of any court orders, or findings by the Office of the Public Guardian, relating to the Agent’s authority; and
  • keeping these records for the duration of the maker’s incapacity and for at least two years after your authority ceases.

The job of Agent can be brief or it can go on for many years. At the beginning of the process, it may be impossible to tell which it will be.

Keep people informed.

The job of Agent can be brief or it can go on for many years. At the beginning of the process, it may be impossible to tell which it will be. Over the years, you will be dealing with many of the maker’s loved ones and caregivers. Everyone will have ideas about the best interests of the maker and what the maker would or would not have wanted. Interpersonal problems are bound to arise.

Although you cannot keep everyone happy all of the time — and it is not your responsibility to do so — there are certain things you can do to help minimize the possibility of strife.

  • Consider providing the closest loved ones with a copy of the Personal Directive (unless the Personal Directive itself says otherwise).
  • Remain aware of any dispute between loved ones, as this may help you put a stop to issues before they arise.
  • Show respect and consideration for the opinions and thoughts of others. You are ultimately responsible and you must make the decisions that your duty requires, but a positive attitude towards others can sometimes help with decisions that may be met with some disapproval.
  • Keep loved ones informed of big decisions and the reasons. Often when people have warning or at least an explanation of something they might otherwise not agree with, it can help lessen the blow. This in turn may amount to less negative feedback to you. Also, no loved one likes to feel that he or she does not know what is going on.
  • Keeping all the affected loved ones informed also helps develop confidence in your actions.

Bear in mind, however, that disputes may ultimately have to be settled by the Office of the Public Guardian or in court.

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