Making a Personal Directive in Alberta – How do I make one? Top 10 Questions about Creating a Personal Directive

How do I make one? Top 10 Questions about Creating a Personal Directive

Who can make a Personal Directive?

Anyone over the age of 18 can complete a Personal Directive. In addition, you must, at the time of signing, understand the nature and effect of a Personal Directive. If, at the time of signing, you were not mentally capable of understanding this, the document will be void.

How do I make a Personal Directive?

There are numerous ways. A Personal Directive can be handwritten or typed. Although a lawyer is not required, it is recommended. Regardless of whether you engage a lawyer, you can start the process of creating your Personal Directive by visiting the Alberta Government information website (see link at the back of this booklet). From this site, you can link to both a template for a voluntary standard form and an instruction sheet for creating a Personal Directive.

For your document to be legal you must have sufficient mental capacity at the time you sign your Personal Directive, and it must be dated, signed by you in the presence of one witness, and signed by that witness in your presence.

If you cannot sign it for yourself, your Personal Directive can be signed for you – but not by the person you are appointing as your Agent, or by your Agent’s spouse or adult interdependent partner.

Similarly, a Personal Directive cannot be witnessed by:

  • the person being named as the Agent;
  • the spouse or adult interdependent partner of the person being named as the Agent;
  • the spouse or adult interdependent partner of the maker;
  • a person who signed the Personal Directive on the maker’s behalf; or
  • the spouse or adult interdependent partner of the person who signed the Personal Directive on the maker’s behalf.

In order to be valid, your Personal Directive must comply with all of the requirements of the Personal Directives Act. If you have a living will or an advanced directive made before that date, or a similar document from out of province, verify that it meets the requirements of the Personal Directives Act to ensure it is legally binding.

Do I have to use a lawyer to make my Personal Directive?

The law does not require you to use a lawyer’s services, but you may wish to consider this, especially if you anticipate a lengthy illness. Similarly, if you anticipate that someone may challenge your Personal Directive by saying, for example, that you were not mentally capable at the time it was made, it would be advisable to consult with a lawyer. You may also want to ask your doctor for a medical report confirming your capacity.

What is the cost of preparing a Personal Directive with a lawyer?

There is no exact answer to this question. If you consult a lawyer, the cost will vary depending on the lawyer, the complexity of the Personal Directive, and the expertise needed to draft it. Often, lawyers will quote a single price for separate Personal Directives done for spouses at the same time, or a single price for a package of Powers of Attorney, Personal Directives and Wills for spouses at the same time.

What level of mental capacity is needed to make a Personal Directive, and who decides if I have that capacity?

The term “mental capacity” means different things for different types of decisions and actions. In general, however, it refers to a person’s ability to understand the information that is relevant to the particular decision and to appreciate what could happen as a result of making a certain decision (or not making a decision) about the matter.

In terms of making a Personal Directive, having mental capacity means that you understand:

  • the kinds of personal matters over which you are giving power;
  • the authority that you are giving your Agent;
  • whether the person you name as your Agent is truly concerned with your well-being;
  • that you may need this person to make decisions for you;
  • that, as long as you are mentally capable, you can revoke (cancel) this Personal Directive; and
  • that there is always a chance that your Agent could misuse his or her authority.

If you see a lawyer to make a Personal Directive, the lawyer will conduct tests to ensure that you have the required capacity. If, however, you are found incapable, you have the right to request a capacity review hearing and be represented by counsel at that hearing. No one has the right to prevent you from contacting a lawyer or asking for a review hearing.

Regardless of whether or not you see a lawyer to make your Personal Directive, after the fact any interested party can question your capacity when you made it. This is done by applying to a court.

Can anyone be a witness to my Personal Directive and what are my witnesses’ responsibilities?

No. There are some restrictions. The following people cannot act as witnesses:

  • anyone under the age of 18;
  • anyone who is themselves mentally incapacitated;
  • the person being named as the Agent;
  • the spouse or adult interdependent partner of the person named as the Agent;
  • the spouse or adult interdependent partner of the maker;
  • a person who signed the Personal Directive on behalf of the maker; and
  • the spouse or adult interdependent partner of the person who signed the Personal Directive on behalf of the maker.
  • Witnesses are required to act in good faith and should refuse to witness the Personal Directive if they have reason to question the mental capacity of the person who is signing it. As long as they meet these standards, they will not be held responsible even if the Personal Directive is later challenged.

What should I do with my Personal Directive after I have completed it?

It depends on your situation. Many people choose to put their original Personal Directive in a safe place that their Agent knows about and can access quickly if needed. Others choose to leave it with a trusted third party such as their lawyer, with specific instructions about when to release it.

If you do this, however, it is important to remember that it may be many years, if ever, before your Personal Directive is needed, and the person you have left it with may have moved away or even died in the meantime.

You may wish to leave a copy with your family doctor. You may also wish to register a copy with the Alberta Personal Directives Registry (the Registry).

If you register your Personal Directive in this manner, health care professionals will be able to access it more quickly in emergency situations. For more information on the Registry, please see the links provided in the last section of this booklet.

Do I have to register my Personal Directive with the Alberta government?

No. There is no requirement that these documents be registered. However, the government of Alberta does have a voluntary Personal Directives Registry. If you register your Personal Directive in this registry, health care professionals will be able to access it more quickly in emergency situations. You can register your Personal Directive online or by mailing a Registration Form to the Office of the Public Guardian, who will enter the information. To request a Registration Form call the Office of the Public Guardian toll free at 1-877-427-4525. For more information on the Registry, please see the links provided in the last section of this booklet.

It also makes sense to ensure that the people in your life who need to know about this document – especially your Agent – have a copy or know where to get one if needed.

You may wish to include instructions that additional family members, friends or service providers are informed when the Personal Directive comes into effect. If you do not wish your nearest relative (as defined in the Act) to be informed, you must indicate this in your Personal Directive.

See question 3.10 for more information.

Whom should I advise about my Personal Directive?

In order to prevent confusion when the time comes, you may wish to advise your doctor and other care/service providers, family members, your lawyer and, if applicable, your minister.

It is advisable to make a list of the people you inform or give a copy to, so that you can advise them of any future changes as well.

What can I do to prevent misuse of my Personal Directive?

Before you make a Personal Directive you may want to talk to a friend, family member, or lawyer. You may also insist that your Agent get legal advice about his or her responsibilities.

Be sure you choose someone you trust. You may wish to name more than one person. Talk to these people before you appoint them and make sure they understand what you
expect from them, and when you expect them to act.

Remember that, technically, a Personal Directive takes effect when you lack capacity. You may want to give the Personal Directive to someone else you trust, and tell him or her when to give it to the Agent. You can put limits on the power you give to your Agent.

Misusing a Personal Directive is a crime. If your Agent abuses his or her power, you or someone else can call the Office of the Public Guardian and report the situation. They have the power to investigate.

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