Must-have Information on Personal Directives

What is a Personal Directive (“Living Will”)?

A Personal Directive is a legal document where an adult may appoint another adult (the “agent”) in writing to make personal decisions for him or her at a future time when the adult, making the Personal Directive, loses the capacity to make them.

A Personal Directive is similar to a guardianship order under the Adult Guardianship and Trusteeship Act. However, the requirements to obtain each differ, and each may not be appropriate in all circumstances.

For more information, please refer to the Adult Guardianship and Trusteeship section of our website.

Who can be an agent?

An agent can be:

• any individual (over 18 years of age); or
• the Public Guardian, if:
  • the Public Guardian is the only agent designated in the Personal Directive;
  • the adult can satisfy the Public Guardian that no other person is able and willing to act as agent; and
  • the Public Guardian consents.

For additional information on being an agent, please contact our trusted Wills and Estate lawyers at the Edmonton Law Office.

Personal matters/decisions:

A Personal Directive only deals with non-financial personal matters. The following are some of the personal matters listed under section 1(1) of the Personal Directives Act:

• Health care;
• accommodation;
• with whom the adult lives and associates with;
• participation in social, employment and educational activities; and
• legal matters that do not related to the adult’s estate.

When does a Personal Directive come into force?

A Personal Directive comes into force when the adult lacks the mental capacity to make personal decisions on the matters listed in the Personal Directive. Unlike the enduring power of attorney, Personal Directives cannot come into force at the time of signing the document.

Requirements of a Personal Directive

Under the Personal Directives Act, for a Personal Directive to be valid:

• both the agent and the adult must be at least 18 years old;
• be in writing;
• be dated and signed by the adult in the presence of a witness;
  • If the adult is physically, not mentally, incapable of signing, another person can sign on behalf of the adult in the presence of both the adult and a witness.
• Not be signed, on behalf of the adult, by:
  • A person designated as an agent in the Personal Directive; or
  • The spouse or the Adult Interdependent Partner of a person designated as an agent in the Personal Directive. Please refer to our Family Law section for more information on Adult Interdependent Partners and Partnership.
• be signed by a witness in the presence of the adult;
• not be witnessed by
  • An agent;
  • A spouse or Adult Interdependent Partner of an agent named in the Enduring Power of Attorney;
  • The spouse or Adult Interdependent Partner of the adult;
  • The spouse or Adult interdependent Partner of a person designated as an agent;
  • A person who signed the Personal Directive on behalf of the adult; or
  • The spouse or Adult Interdependent Partner of the person who signed the Personal Directive on behalf of the adult.

Capacity

Under the Personal Directives Act, capacity means the ability to understand the information that is relevant to the making of a personal decision and the ability to appreciate the reasonably foreseeable consequences of the decision.

When does the Personal Directive come into force?

A Personal Directive comes into force when the adult lacks capacity and the designated person(s) signs a declaration of incapacity.

The designated persons are named in the Personal Directive. A designated person is someone who can determine the capacity of the adult. In most cases, designated persons are agents and the adult’s physician.

To determine capacity, the designated person(s) must first consult with a physician or psychologist and then make the declaration in writing.

For further information on incapacity declaration or requirements of designated persons, please contact the estate planning lawyers at the Edmonton Law Office.

Termination of a Personal Directive

Section 10 of the Personal Directives Act provides that a Personal Directive ceases to have effect when:

1. A determination that the adult has regained capacity is made;
2. The adult dies;
3. The Personal Directive is validly revoked; or
4. A court orders that the Personal Directive ceases to have effect.

Revoking a Personal Directive

Under the Personal Directives Act, a Personal Directive may be revoked in the following ways:

1. The adult revokes the Personal Directive in writing, provided the adult understands the nature and effect of doing so;
2. The adult creates a later Personal Directive that contradicts the earlier Personal Directive;
3. The adult creates a document, expressing the intention of revoking an earlier Personal Directive; or
4. The adult destroys the original Personal Directive with the intention of revoking it.

It is important to remember that, except when the adult destroys the original Personal Directive, any revocation must be in writing, signed and dated by the adult.

Authority of an Agent

Unless specifically excluded by the Personal Directive, an agent’s authority extends to all personal matters.

To know more about limiting or extending an agent’s, contact your local and trusted Estate planning attorney at the Edmonton Law Office.

What are the duties of an Agent?

An Agent must:

1. Consult with the adult, before making a personal decision;
2. Follow all clear instructions in the Personal Directive;
3. Make the decision that the agent believes the adult would have made in the circumstances based on the agent’s knowledge of the wishes, beliefs and values of the adult; or
4. Make the decision that the agent believes is in the adult’s best interests in the circumstances, when the agent does not know the adult’s wishes, beliefs and values.

Disclaimer: All the information provided on this page is published in good faith and for general information purpose only. Edmonton Law Office does not make any warranties about the completeness, reliability, and accuracy of this information. Laws are constantly changing.  The content contained in this article is only relevant at the time of writing. For more information, please contact the Edmonton Law Office and our knowledgeable Wills & Estate lawyers will be happy to assist you.