Being an Agent – What Happens When…?

What happens when…?

Top 15 general questions about being an Agent

How does a Personal Directive come into effect? What is this Declaration of Incapacity?

A Personal Directive only comes into effect once the maker has been determined to be incapable of making his or her own personal decisions. The Directive may continue to be used only during the time that the maker is mentally incapable of making his or her own personal care decisions.

A Personal Directive often includes a provision about who will determine mental incapacity for making personal care decisions. If this is included, the decision will be made by that person, after that person has consulted with a physician or psychologist. If this is not included, the law requires that the determination be made by two service providers, at least one of whom is a physician or psychologist.

Regardless of who makes this determination, the parties must make a written statement that the person lacks capacity (this is known as the “Declaration of Incapacity”). Forms and instructions are available at: http://humanservices.alberta.ca/guardianshiptrusteeship/opg-personal-directives.html. This written record must be kept by the physician or psychologist. A copy of the Declaration of Incapacity must be given to the maker, the Agent, and any other persons named in the Personal Directive.

The Agent must then inform the maker’s nearest relative (unless the Personal Directive says not to) as well as the maker’s legal representative that the Personal Directive is in effect.

A Personal Directive often includes a provision about who will determine mental incapacity for making personal care decisions…[r]egardless of who makes this determination, the parties must make a “Declaration of Incapacity”.

How do I confirm that I was named as the Agent?

Currently in Alberta, a maker does not have to give a copy of his or her Personal Directive to anyone. This can result in much confusion in emergency situations. For this reason, if you know that you have been named as Agent, you should consider:

  • keeping a notarized copy of the Personal Directive where it can be accessed quickly and easily;
  • asking the maker to keep a card in his or her wallet, indicating your status as Agent as well as your contact details;
  • asking the maker to register the Personal Directive in the Alberta Personal Directive Registry; and
  • when the time comes, obtaining the original version of the Personal Directive.
    • If it is not at the maker’s home, check in his or her safety deposit box (for this, you will need to contact the Attorney named under the maker’s Power of Attorney) or at the office of the lawyer who drafted the Personal Directive.
    • To look in the safety deposit box:
      • make an appointment at the bank; and
      • take the safety deposit box key and your own identification.

If the Personal Directive is there and names you as Agent, the bank should let you take it.

What if I can’t find the original Personal Directive?

If you can’t find the original Personal Directive, check with the maker’s relatives and close friends. They may know where it is.

Although you can proceed with your notarized copy, someone may ask to see the original and it is best to have it. In addition, if there is any dispute between family members as to the authenticity of the Personal Directive, it is best to have the original.

I found a Personal Directive that is handwritten, signed, and dated, but no one else witnessed it. Is it valid?

No. Although a Personal Directive can be valid if it is entirely handwritten by the maker, it must meet all other requirements of the Personal Directives Act.

According to the Act, the Personal Directive must be:

  • dated;
  • signed;
    • by the maker in the presence of a witness, or
    • if the maker is physically unable to sign the directive, by another person on behalf of the maker, at the maker’s direction and in the presence of both the maker and a witness; and
  • signed by that same witness in the presence of the maker.

What happens if there is more than one Personal Directive?

Usually, there is only one valid, binding Personal Directive. Generally, the binding Personal Directive is the one that is both the most recent and which meets all legal requirements.

Example:

  • A maker wrote a Personal Directive in 2002, which met all of the legal requirements.
  • The maker wrote a new Personal Directive in 2007; it attempted to revoke the 2002 document, but not all of the legal requirements were met.
  • The 2002 Personal Directive remains the valid one.

As Agent, you must make appropriate effort to ensure that you are working with the correct document. Your job is to do your best to ensure that the wishes of the maker are carried out.

Sometimes, however, there may be a dispute regarding which Personal Directive is valid (for example, there may be a claim that the most recent Personal Directive was written when the maker did not have capacity). A court may have to decide.

If there is more than one Personal Directive and they can be read together (that is, they do not conflict) a court may take into account the provisions of both, but this is extremely rare.

As an Agent, what exactly is it that I have power over?

As Agent you are responsible for making the personal (including legal) but non-financial decisions of the maker, for as long as the maker remains incapacitated.

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, and without limitation includes:

  • 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).

As Agent, what are my responsibilities?

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

  • confirm that the Personal Directive is in effect;
  • 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 7 would have made in the same circumstances, based on your knowledge of the maker’s wishes, beliefs, and values;
  • if you do not know the wishes, beliefs or values of the maker, make a decision based on the maker’s best interests;
  • keep a record of personal decisions you have made, which must be retained for the entire duration of the maker’s incapacity and for two years thereafter;
  • on request, provide a copy of the Personal Directive and the record of your 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.

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.

Agents should only make those personal care decisions that the maker cannot make himself or herself. (Service providers must also 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 an improvement (known as a “significant change”) in the maker’s capacity, that Agent must consult with a service provider who provides health care services to assess the maker’s capacity. In the Personal Directives Act, the term “significant change” is defined as “an observable and sustained improvement that does not appear to be temporary”.

  • If the Agent and service provider agree that the maker has regained capacity to make decisions with respect to personal matters, make a determination in the prescribed form (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.

As the Agent, 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. The terms “reasonable effort” and “good faith” depend on the individual circumstances of the situation. These terms cannot be described in detail without first considering the particular case.

Are there things that an Agent cannot do?

An Agent may not sign a second Personal Directive on behalf of the maker for whom he or she is an Agent.

In addition, the Personal Directives Act specifies that there are certain things that an Agent cannot approve unless the maker’s Personal Directive contains clear instructions enabling the Agent to do so. These include:

  • psychosurgery as defined in the Alberta Mental Health Act;
  • sterilization that is not medically necessary to protect the maker’s health;
  • removal of tissue from the maker’s living body;
    • for implantation in the body of another living person pursuant to Part 1 of the Human Tissue Gift Act, or
    • for medical education or research purposes; and
  • participation by the maker in research or experimental activities, if the participation offers little or no potential benefit to the maker.

If the Personal Directive was made in another province, is it still valid here?

As long as it meets the requirements of the Alberta Personal Directives Act, the Personal Directive is valid in Alberta.

If it does not meet all of the requirements of the Personal Directives Act, a service provider can refuse to accept the Personal Directive. Although, a service provider may still choose to honour the document, this can lead to difficulties.

The maker now lives outside the province. Is the Personal Directive still valid?

Not necessarily. Another province or another country may choose not to accept the Alberta Personal Directive. If that occurs, you may wish to consult a lawyer.

Can I ask some professionals for help with my duties as an Agent?

Agents are encouraged to consult with people who are knowledgeable in the area of concern, such as doctors. In addition, Agents may wish to consult those who may be affected by the decisions in question, such as family and friends.

The Office of the Public Guardian may be a helpful resource (offices are listed at the end of this pamphlet).

What are the responsibilities of service providers?

If a service provider intends to provide personal services to a maker who lacks capacity and a Personal Directive is in effect, the service provider must:

  • if the Personal Directive designates an Agent, follow any clear instructions of the Agent that are relevant; or
  • if the Personal Directive does not designate an Agent, or if the Agent is unable or unwilling to make a personal decision (or cannot be contacted after every reasonable effort has been made), follow any clear instructions in the Personal Directive that are relevant to the decision to be made.

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

  • consult with the Agent and assess the maker’s capacity; and
  • if the Agent and service provider agree that the maker has regained capacity to make decisions with respect to that or other personal matters, complete the appropriate form (known as the “Determination of Regained Capacity Form”).

If the Agent and service provider do not agree, two service providers, at least one of whom is a physician or psychologist, must assess the maker’s capacity. The service provider must arrange this assessment if the Agent has not already done so.

What happens in an emergency?

The Personal Directives Act gives health care practitioners permission to provide emergency medical services to a person who appears to lack mental capacity in a situation where:

  • the Personal Directive cannot be found;
  • an Agent cannot or is not willing to make a decision;
  • the Agent cannot be found after reasonable effort and the Personal Directive does not contain clear instructions; or
  • the Personal Directive does not appoint an Agent and does not contain clear instructions.

After providing the emergency medical service, the health care practitioner must try to contact, in the following order:

  1. an Agent or Guardian;
  2. the nearest relative;
  3. any other legal representative of the maker (such as his or her Attorney under a Power of Attorney); and
  4. the Public Guardian.

The Personal Directives Act gives health care practitioners permission to provide emergency medical services to a person who appears to lack mental capacity in a situation where the Personal Directive cannot be found.

Can someone review and/or challenge the decisions that I make as Agent?

The Personal Directives Act provides no formal means to review the actions of an Agent, but it allows the maker to include such a provision. As Agent, you will need to check the Personal Directive and provide documentation as directed. In addition, at any time, the maker can request a review.

The question of challenges depends on the particular issue.

Any interested person may apply to the Court of Queen’s Bench to question the capacity of the maker at the time the Personal Directive was made or question the validity of a Personal Directive or part of it. Only a court has the final say about such issues.

Until July 2008, any complaints about the actions or inactions of one or more Agents also had to come through a court application. Although an interested party can still proceed this way, the Alberta Office of the Public Guardian now has the authority to investigate such complaints. The only complaints that will be investigated this way are those involving an Agent failing to comply with the Personal Directive or the duties of an Agent, thus causing physical or mental harm to the maker. All other complaints can still be resolved through a court application.

Complaints must be made, in writing, to the Office of the Public Guardian. Any interested party can send a written complaint about the Agent to the Office of the Public Guardian. The form is available from http://www.humanservices.alberta.ca/guardianship-trusteeship/personal-directives-how-it-works.html or by calling 1-877-427-4525 toll-free. All complaints will be reviewed.

If there is an indication that an Agent is not following instructions or complying with his or her duties, and there is harm to the maker as a result, an investigation will be conducted. Investigations can include interviews and accessing relevant records. 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 the investigation shows the complaint has merit, the Office of the Public Guardian may try to resolve the matter (for example, by further educating or training the Agent), make a referral to an alternative dispute resolution process, or apply to the Court for one or more orders including the revoking of an Agent’s authority.

When do my responsibilities as Agent end?

Your responsibilities as an Agent cease:

  • during any period in which the maker regains and has capacity to make his or her own decisions;
  • if the maker has indicated a date or circumstance in which his or her Personal Directive will be revoked or changed. For example, a Personal Directive can name one Agent for a set period of time, with another Agent to take over at a set future date, (“my sister, until my child turns 18; then my son, once he turns 18”);
  • if the maker dies;
  • if a court determines that the Personal Directive ceases to have effect;
  • any time you no longer wish to be an Agent; or
  • when you die.
[I]f it appears to an Agent that there has been an improvement … in the maker’s capacity, that Agent must consult with a service provider who provides health care services to assess the maker’s capacity.

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