If you lose the capacity to make your healthcare/ personal care
or financial decisions, what will happen? Most Albertans believe
that their spouses or common law partners will automatically have
the authority to make such decisions on their behalf. However, this
is not the case.
Unlike some other Canadian provinces, Alberta does not have
legislation that sets out an order of priority for substitute
decision-making for incapable adults. In Alberta, there is no law
that automatically gives your family or loved ones the right to
make decisions on your behalf. The Adult Guardianship and
Trusteeship Act authorizes a health care provider to select
your nearest relative to make treatment decisions in specific
emergency or temporary situations. However, in situations of a
non-urgent nature your family does not have the authority to make
decisions on your behalf in the absence of a Personal
Directive/Enduring Power of Attorney or a Court order.
On this basis, we strongly recommend that every Albertan
prepares both an Enduring Power of Attorney and a Personal
Directive. Such documents are preferable to relying on the
guardianship and trusteeship process for many reasons. The
application process for obtaining a guardianship and trusteeship
order is lengthy, challenging and, if you engage a professional,
expensive. In Alberta, even simple, uncontested desk applications
for guardianship and trusteeship are currently taking at least 4-6
months to receive a Court order. This is a lengthy delay when
family members require access to the incapable adult's finances
or health care records, or are making arrangements for the
adult's long term care. Most significantly, perhaps, the person
that is appointed as your Guardian and Trustee may not have been
the person that you would have chosen to manage your finances or
make your personal care decisions.
By contrast, Enduring Power of Attorneys and Personal Directives
allow individuals to appoint whomever they wish to make their
decisions for them in the event of incapacity. Also, once the
incapacity has been confirmed (by whatever means the individual
directs), the appointed decision maker can promptly begin acting on
your behalf and according to your instructions.
Such documents can also be used to provide your decision maker
with specific instructions as to how you wish them to exercise
their authority during your incapacity. Your Personal Directive may
directly communicate specific instructions, preferences and values
with respect to medical treatment, accommodation or participation
in social activities. Your Enduring Power of Attorney may
specifically instruct your decision maker to financially assist a
family member, to continue making donations to your chosen
charities, or to formally account to specific people on a periodic
basis. Planning ahead also allows your family members to have a
degree of certainty and comfort when they are faced with difficult
decisions and stressful circumstances. The simple act of creating a
Personal Directive may promote discussion about your personal
care/healthcare wishes with your agent and loved ones, which will
place your appointed agent in a better position to make decisions
that accurately reflect your wishes in the event that your agent
needs to exercise her authority on your behalf.
Our Wills, Estates, and Trusts group has expertise and
experience in this area and can assist if you wish to prepare an
Enduring Power of Attorney and Personal Directive, or discuss
preparing an estate plan that contemplates your specific
circumstances and will assist to implement your intentions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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