Making a Personal Directive – What happens with it?

What happens with it?

Top 10 Questions about the Administration of Personal Directives

When and how will my Personal Directive take effect and who will say that I am incapable?

A Personal Directive cannot be used until you have been declared mentally incapacitated and it may only continue to be used during a time that you are mentally incapable of making your own personal care decisions.

Your Personal Directive can include a provision about who will determine that you are mentally incapable of making your own personal care decisions. If you included such a provision when you made your Personal Directive, the decision will be made by that person, after that person has consulted with a physician or psychologist.

If your Personal Directive does not include such a provision, the law requires that the determination be made by two service providers, at least one of whom is a physician or psychologist.

Either way, the parties must make a written declaration that you lack capacity (this is called the Declaration of Incapacity Form). This written record must be kept by the physician or psychologist. A copy of the Declaration of Incapacity must be given to you, your Agent and any other persons named in your Personal Directive. Your Agent must then inform your nearest relative (unless your Personal Directive says not to), as well as your legal representative, that the Personal Directive is in effect. In this notification, your Agent must indicate both that a determination of incapacity has been made and that you, the maker, may make an application to the Court for a review of this determination.

Your Agent will only be able to make those personal care decisions that you cannot make yourself (service providers must make reasonable efforts to determine whether you continue to lack capacity). You might, for example, be incapable of making a serious health care decision but still be able to make your own choices about routine day-to-day matters.

Immediately after a determination of mental incapacity is made, the person making the determination must notify your Agent and anyone else designated to be notified (as per your instructions in your Personal Directive). Within a reasonable period of time thereafter, your Agent must notify your nearest relative and legal representative(s), if any.

After my Personal Directive takes effect, what will be my Agent’s responsibilities?

When making a decision on your behalf, your Agent must:

  • confirm that the Personal Directive is in effect (that you have signed it and it is valid);
    consult with you;
  • follow any clear instructions provided by you in your Personal Directive;
  • if there are no clear instructions relevant to a particular situation, make the decision that s/he feels you would have made in the same circumstances. It must be based on knowledge of your wishes, beliefs and values;
  • if your Agent does not know your wishes, beliefs or values, make a decision based on your best interests;
  • keep a record of personal decisions s/he made, which must be retained for the entire duration of your incapacity and for two years thereafter; and
  • on request, provide a copy of your Personal Directive and the record of decisions to you, and, in the case of a particular matter to your lawyer, or other representative of yours (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 your family and friends.

If it appears to your Agent that there has been a significant change in your capacity, the agent must:

  • consult with the service provider who provides health care services and assess your capacity, and
  • if the agent and service provider agree that you have regained capacity to make decisions with respect to that or other personal matters, make a determination in the prescribed form (this is known as the “Determination of Regained Capacity Form”). If you do not agree, your Agent must then have two service providers, at least one of whom is a physician or psychologist, assess your 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”.

When an Agent acts with reasonable efforts and in good faith while carrying out his or her authority, there is no liability. However, if an Agent willfully destroys, conceals or alters a Personal Directive, or a document revoking the Personal Directive, s/he 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.

How long does a Personal Directive last?

A Personal Directive generally lasts until:

  • you die;
  • you revoke it;
  • you regain capacity;
  • a court determines that it ceases to have effect; or
  • your Agent dies or quits.

Your Personal Directive can also indicate a date or circumstance in which it will be revoked or changed. For example, you can indicate that your sister is your Agent until your child turns 21, at which point your child will become your Agent.

If you feel that someone is using your Personal Directive to make decisions for you when you are still capable of making them, or have recovered, you can ask for a court hearing to review your situation.

Is a Personal Directive effective outside of Alberta?

It depends on the law of the particular place where you want to use the Personal Directive. If you are going to move or be out of the province for some time you may want to check with a local lawyer to see if you need to make new documents.

If there is more than one Personal Directive, which one is valid?

More than one Personal Directive can be valid at the same time (for example: different documents for different purposes).

Naturally, if more than one Personal Directive provides the same powers to different people, this can cause great confusion. To be sure that you have only one Personal Directive in effect, ensure that each new Personal Directive includes a phrase indicating that you revoke all Personal Directives previously made.

What happens if the person I appoint as my Agent cannot act for me for some reason?

You can avoid this problem by naming one or more people as your “alternate” Agent. The alternate can act if your Agent is unable to assume the role or chooses not to. If you have not named an alternate you should consider making a new Personal Directive.

If all of the possible Agents named in your Personal Directive are unable or unwilling to act, your Personal Directive will cease to have effect.

Can a Personal Directive be challenged?

Yes. However, the choices for challenging depend on the particular issue.

Any interested person may apply to the Court of Queens’ 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 be brought forward through a court application. Although an interested party can still proceed in this manner, the Alberta Office of the Public Guardian now has the authority to investigate such complaints. Only complaints involving an Agent failing to comply with the Personal Directive or the duties of an Agent in a way that is causing physical or mental harm to the maker will be investigated. All other complaints must 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. You can download the form or obtain a copy by calling 1-877-427-4525 toll-free.

All complaints will be reviewed and an investigation will be conducted if there is an indication that an Agent is not following instructions or complying with the duties of an Agent, and, as a result, there is either physical or mental harm to the maker. The investigation 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/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 providing further education and training to 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.

What if my Agent makes decisions that are not in accordance with my wishes or my best interests?

If your family, friends or care or service providers believe that your personal decisions are not being made properly by your Agent, they can either:

  • apply to the Court of Queen’s Bench, which has the authority to make a decision or vary, confirm, stay or rescind a decision by your Agent or remove your Agent
    and appoint a guardian in his/her place; or
  • if they believe that your Agent is failing to comply with the Personal Directive or the duties of an Agent and that this failure it causing you physical or mental harm, file a complaint with the Office of the Public Guardian.

See question 5.7 for more information on this process.

Is a photocopy of the Personal Directive valid?

In most instances, a photocopy will not be enough. Most care-providers will request a notarized copy.

If the original is changed, to avoid confusion all copies of the original Personal Directive should be destroyed and replaced.

What happens in a medical emergency, or if my Personal Directive does not state a specific service?

In a medical emergency, a health care provider can give medical services without consent and without waiting to see a Personal Directive. If this happens, the health care practitioner must inform the Agent of the circumstances as soon as possible.

A Personal Directive does not necessarily have to specifically name a service. This would be far too cumbersome. In general:

  • if the Directive simply names the Agent, the Act states the Agent has authority in all personal matters;
  • if the Directive simply names the Agent and a general area of authority, if the service needed fits in that area, the Agent will be considered to have authority;
  • however, if the Directive specifies one or more specific areas of authority, the Agent’s authority is restricted to these areas; and
  • similarly, if the Directive specifically indicates a service that is not wanted, the Agent does not have authority.

Your Agent will only be able to make those personal care decisions that you cannot make yourself. You might be incapable of making a serious health care decision but still be able to make your own choices about dayto-day matters.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. April 2014.
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