Personal Directives (Living Wills)

While you may have heard the terms ‘Personal Directive’ and ‘Living Will’ used before, you might not be entirely sure what they refer to. Both terms describe a formal legal document that appoints an Agent to make personal decisions on your behalf, including medical and healthcare decisions, in the event that you lose decision-making capacity. While ‘Personal Directive’ is the formal legal name for this type of document in Alberta, other jurisdictions may use the term ‘Living Will’ instead.

What is a Personal Directive in Alberta?

Personal Directive and Estate Planning

A Personal Directive is, along with a Will and Enduring Power of Attorney, one of the 3 foundational documents of an effective Estate Plan. While your Will guides the distribution of your Estate, it doesn’t take effect until after you pass away—in other words, the Will-maker’s death ‘activates’ the document.

However, your Will isn’t helpful if you lose decision-making capacity while you’re still alive. It may seem farfetched now, but many people lose decision-making capacity at some point before death. An accident or illness has the potential to take away your decision-making capacity unexpectedly, or, more commonly, people experience gradual capacity loss as they get older. For that reason, it’s important to designate decision-making responsibilities to a trusted loved one while you’re still able to express your wishes.

What Does a Personal Directive Do in Alberta?

According to Alberta’s Personal Directives Act, “unless a Personal Directive provides otherwise, an Agent has the authority to make personal decisions on all personal matters of the maker.”

While that may seem vague, it’s intentionally broad. If you’ve lost decision-making capacity, your Agent can make almost any personal decision on your behalf, including decisions about the following:

• Healthcare;
• Accommodation;
• With whom you live and associate;
• Your participation in social, educational, and employment activities; and
• Legal matters that do not relate to your property.

While the above isn’t an exhaustive list, it categorizes many of the types of decisions that an Agent is required to make while acting under a Personal Directive. It’s also worth remembering that your Agent must, by law, consult with you before making a personal decision pursuant to your Personal Directive.

What is Considered ‘Capacity’?

While a Personal Directive takes effect prior to death, it doesn’t take effect until you lose decision-making capacity.

According to the Alberta 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.”

For example, if the decision in question is whether to undergo surgery, a patient with decision-making capacity will be able to understand the risks of the surgery and they will be able to understand the reasonably foreseeable consequences of the surgery, such as being bedridden or having having to take various medications.

Someone without capacity wouldn’t be able to understand the risks of the surgery or be able to appreciate the reasonably foreseeable consequences of the surgery.

Who Decides if You Have Capacity?

Your Agent and service provider, typically a physician, must jointly determine whether you have decision-making capacity.

In practical terms, if your capacity loss was gradual, and didn’t occur immediately from unforeseen trauma or an accident, the Agent appointed in your Personal Directive, usually a trusted friend, family member, or loved one, would attend your physician’s office, discuss your decision-making capacity, and your physician would then prepare a written capacity report.

If giving someone else that sort of control over your decision-making scares you, it’s comforting to know that you can request a capacity reassessment from another physician or make a court application regarding your capacity.

Partial Capacity and Regaining Capacity

While a Personal Directive typically comes into effect upon capacity loss, it’s not an ‘all-or-nothing’ document. It’s possible to lose capacity to make some decisions, but not others. It’s also possible to lose capacity and later regain it.

If you have capacity to make some decisions, but not others, your Personal Directive will only take effect for those decisions which you’ve lost capacity to make. In other words, your appointed Agent must consider whether you have capacity to make the specific decision in question.

If either your appointed Agent or your service provider notices a significant change in your capacity, your Agent and service provider must consult with one another. If, upon consultation, they both agree that you’ve regained decision-making capacity with respect to one or more personal matters, your Agent will lose their decision-making authority with respect to those matters.

Do You Have a Personal Directive in Place?

Sadly, capacity loss can occur suddenly and unexpectedly. It’s crucial that you have a Personal Directive in place that appoints an Agent whom you trust and includes your specific intentions regarding healthcare decision-making. If you don’t have a Personal Directive in place, contact the Wills & Estates lawyers at West Legal to book your free-of-charge, no-obligation consultation.