Making a Personal Directive – What goes in it?

Making a Personal Directive – What goes in it?

Top 10 Questions about the Content of Personal Directives

In general, what should I consider in making a Personal Directive?

You should carefully consider both who your Agent will be and exactly what powers and instructions you will give them. Will they be limited or general?

Your instructions can be about any or all personal matters that are non-financial, such as:

  • medical treatments you would or would not want;
  • where you would like to live;
  • whom you would like to live with;
  • choices about other personal activities (recreation, employment or education); and
  • any other personal and legal decisions (for example: the continued care and education of a minor for whom you are the guardian).

Who can I appoint as my Agent?

personal directive-what goes in it?The person you appoint must be at least 18 years of age and must have the mental capacity to make personal decisions on your behalf. The person must also be willing to act as your Agent. You can name someone who lives outside Alberta, although this may not prove very practical.

Give your choice very careful consideration. If the need arises, your Agent will be making profoundly important decisions about your health and quality of life.

If you do not know someone who can be your Agent, you can appoint a person who is your service provider as your Agent if you provide the given name of the person you are appointing. You cannot appoint by only stating an office or position. For example, if you are a resident at a nursing home, you can appoint the executive director, by name, (e.g.: Jane Doe) but you cannot simply state “the Executive Director of XYZ Home”. You must name a specific person, not a role In addition, it is possible to appoint the Public Guardian as your Agent; however this can only be done if:

  • the Public Guardian is the only Agent designated in the Personal Directive;
  • the maker satisfies the Public Guardian that no other person is able and willing to act as Agent;
  • the Public Guardian consents to being designated as Agent; and
  • the maker registers the Personal Directive with the Public Guardian.

What should I think about in choosing an Agent?

The Personal Directives Act permits an Agent to refuse your appointment at any time. Therefore it is important that you ask in advance if a person would be willing to act on your behalf.
The choice of Agent is a very important decision and needs careful thought. Remember, your Agent will have full access to your personal affairs. Consider whether the person is willing to take on this job, if needed. There is a lot of work involved and the law expects your Agent to meet very high standards. Consider whether the person is trustworthy, responsible and knows you well enough to understand and interpret your instructions. Will s/he make sure you have all the things you need? Will your privacy be respected? Can you trust the person?

You should also thoroughly inform your Agent(s) about your wishes, beliefs and values so that they can represent you fully if you can no longer express yourself coherently.

You should also take the precaution of naming someone to replace, or substitute for, an Agent who cannot act, or continue to act, for you, (an “alternate” Agent).

What if I want more than one person to be involved in making decisions about my personal care?

You can name one Agent or more than one. You can require that they act together (“jointly”) or you can have them act separately as well as together (“severally and jointly”). If you include this phrase, either of your Agents will be able to act alone on your behalf. If one is away or sick, for example, the other would still be able to give instructions on your behalf. If you do not indicate that they can act severally, they will have to do everything together.

If you designate more than one, you should include some form of disagreement resolution. If your 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. Agents may also apply to a court for advice and direction.

Also, be aware that naming multiple Agents can make things more complicated if difficult decisions need to be made quickly, and, even though you have named two, you should still take the precaution of an “alternate” Agent, in case neither of them can act for you.

I want to name a specific family member but I’m worried that this will cause conflict. Is there anything I can do to prevent this?

Conflict can often be avoided by telling your family in advance and explaining the reasons for your choice.
Sometimes conflict is created because the rest of the family does not know what your Agent is deciding on your behalf. To avoid this, some people name more than one family member and require that all decisions be approved by both of them. This can reduce distrust but it can also create conflict if they disagree about matters. Other people simply choose to specify that all the family must be kept informed about decisions and provided with full information. Another way to avoid family conflict is to name someone else such as a close friend, or a service provider.

What powers can I give my Agent?

Unless you restrict your Agent’s powers s/he will be able to make almost any decision of a personal nature that you could make yourself if you were capable, such as decisions about medical treatment, housing, food, hygiene, clothing and safety. Personal decisions include the giving of consent, the refusal to give consent, or the withdrawal of consent regarding any personal matter.

Your instructions can be about any or all personal matters that are non-financial, such as:

  • medical treatments you would or would not want, (e.g.: chiropractors, naturopaths, massage therapists, immunization issues, chemotherapy);
  • where you would like to live;
  • whom you would like to live with;
  • choices about other personal activities (recreation, employment or education); and
  • any other personal and legal decisions (for example: the continued care and education of a minor for whom you are the guardian).

But note, since the Personal Directives Act does not provide any formal means by which the actions of Agents are reviewed, you may wish to include such provisions in your Personal Directive.

In addition, a Personal Directive can include instructions such as not prolonging life with heroic measures, but a Personal Directive cannot be used to request illegal actions, such as assisted suicide.

A Personal Directive can include instructions such as not prolonging life with heroic measures, but [it] cannot be used to request illegal actions, such as assisted suicide.

Are there any powers my Agent cannot have?

There are a few powers that your Agent cannot have unless your Personal Directive explicitly provides for these powers. They are:

  • psychosurgery as defined in the Mental Health Act;
  • sterilization that is not medically necessary to protect the maker’s health;
  • participation by the maker in research or experimental activities, if the participation offers little or no potential benefit to the maker; and
  • 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(i.e. organ donation). As of April 2014, providing a signed and witnessed statement indicating you wish to donate your organs can also be done online at the Alberta Organ and Tissue Donation Registry. To register you will have to provide your birth date and your health care card number. You will also be asked if you wish to donate all your organs and tissue or just specific body parts.

Is there anything else I need to include about my Agent?

Your Agent is only entitled to be paid if you specifically say so in your Personal Directive. You may wish to discuss this issue with your Agent in advance. You should also consider the amount of effort that your Agent would have to expend.

Your Agent is required to provide you with a list of decisions s/he made whenever you ask for one, but, if you wish, you can include a requirement that s/he must provide such a list at set intervals. Or you could require reporting to someone else.

Your Agent needs to disclose enough information to carry out his or her duties or to abide by the law. In terms of any additional information, your privacy must be respected unless you specifically authorize your Agent to disclose information by writing this in your Personal Directive.

What do I include about when and how my Personal Directive is to take effect?

In your Personal Directive, you can decide who will determine that you are mentally incapable of handling your personal decisions. If you name someone, the determination will be made by that person, after that person has consulted with a physician or psychologist. If you do not name someone, the determination will 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 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 as being entitled to receive a copy. Your Agent must then inform your nearest relative, any other legal representatives, and any other persons named in your Personal Directive as being entitled to notice, that the Personal Directive is in effect.

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.

Is there anything else that I should include?

After a determination of lack of capacity is made, your Agent must notify your nearest relative and everyone that is listed in your Personal Directive as designated to be notified. Therefore, you may wish to include instructions that family members, friends and service providers (including individuals such as your lawyer and minister) be advised. You should include these individuals’ names and contact information.

If you do not wish your nearest relative to be notified, you must say so in your Personal Directive.

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