What is a personal directive and when do I need one?

Posted by heritagelaw on May 3, 2020 in Blog, Wills & Estate

A personal directive is a legal document used to name someone to make personal decisions for you if you’re incapable due to illness or injury.

In the province of Alberta, personal directives are used instead of living wills to ensure that personal decisions can be made for you if you suffer a serious injury or illness and cannot make those decisions.

When you create a personal directive, you appoint someone you trust, or an “agent”, to have the legal authority to make personal decisions for you.

What is a Personal Directive?

A personal directive is a legal document that you can create in case, for some reason, you are unable to make your own personal decisions in the future.

This optional and voluntary document names an individual, or individuals, that you have chosen to act on your behalf and comes into effect once you are found to lack capacity to make personal decisions.

A personal directive also ensures that your wishes and instructions are known if something were to happen to you. These instructions can be about any or all personal and non-financial matters such as:

Medical treatments
Living arrangements
Temporary care of children
Decisions about employment and education
Other personal or legal matters

Again, a personal direction takes effect if something happens that prevents you from being able to make personal decisions. A capacity assessment can be done to confirm your situation.

Should you recover, and your recovery is confirmed with another capacity assessment, you can end the personal directive and take back your power to make decisions.

What Happens if I Don’t Have a Personal Directive?

If you lose the ability to make decisions and do not have a personal directive then physicians and other medical professionals can select a family member to make healthcare-related decisions on your behalf.

If your condition affects your decision-making abilities permanently, your family may have to apply for guardianship through the courts.

Having a personal directive means that your agent can begin acting on your behalf and fulfill your instructions immediately instead of leaving decisions to doctors or the courts.

Should I Write My Own Personal Directive?

Any Albertan over the age of 18 years old can make a personal directive, as long as they understand what having a personal directive means. Unless an adult has been declared incapable of creating a personal directive, anyone can make one.

Personal directives are fairly easy to write and don’t require a specific format. However, you can download a standard form or request one from the Office of the Public Guardian.

Even though you can write your own personal directive, it is recommended that you consult a lawyer. Otherwise, you may end up writing unclear instructions that may create future confusion.

If your instructions are unclear, your wishes may be misinterpreted and not carried out in the way you want them to be.

Also, having a lawyer involved will help to circumvent any conflicts that may arise between the agent and another member of your family regarding your personal directive.

Should someone try and argue your instructions, a lawyer can ensure that the personal directive is carried out legally and in accordance with your wishes.

If you are considering having a personal directive written for you, contact our expert lawyers at Heritage Law. We can help you navigate the process and ensure that your personal directive in clear, concise and in line with your instructions and wishes.

Things to Consider When Writing a Personal Directives

Whether you choose to write your own personal directive, or you seek the advice of a lawyer, there are certain factors you must include:

A title that indicates that the document is a personal directive.
Your name and the name of the person you are appointing agent.
The types of decision-making you wish your agent to have (medical, personal, financial, etc.).
Specific instructions regarding how the agent makes decisions (alone or after consulting family), who makes a determination about your capacity, when the directive takes effect, etc.

Remember to include a space for signatures (including a witness) and dates.

Creating a personal directive involves making some very important decisions. Before you rush to write this document, consider the following:

Who to name as your agent. This person must be over 18 years of age and should be someone you trust. This person doesn’t necessarily have to be a family member.
Avoid naming service providers, such as a doctor, as your agent. This may create a conflict of interest.
Verify with your agent that they are comfortable taking on this role.
You can appoint different agents for different areas of your life. For example, you can appoint one individual to handle medical decisions and another to handle financial decisions.
You do not have to appoint an agent and can instead outline specific instructions. Keep in mind that without an agent, unforeseen circumstances may require health care providers to appoint a family member to make decisions on your behalf.

Having a personal directive will give you peace of mind, knowing that someone you trust will carry out your instructions and wishes in the event that you can’t do so.

Having a lawyer help with the process ensures that your personal directive is air-tight and specific. One small mistake could end up placing you in situations you would not have agreed to.