Personal Directive

A Personal Directive is a legal document where a “Maker” (person giving the authority) appoints or authorizes their “Agent” (person to act on the Maker’s behalf) with respect to the Maker’s personal and medical affairs. This document is very important when the Maker temporarily or permanently loses mental capacity and cannot make their own decisions. Then, the Maker’s Agent can make the necessary decisions on the Maker’s behalf. This can include decisions relating to health care, medical treatment, accommodation with whom the Maker lives and associates, the Maker’s participation in social, educational and employment activities, and legal and personal matters.

Contact one of our experienced estate planning lawyers in Edmonton, who can assist you with preparing your Personal Directive and other estate documents.

Primary Things to Think About Before Making a Personal Directive (PD)

1. Choosing your Primary Agent(s) and Alternate Agents;
2. Powers to entrust to your Agent(s);
3. Who will declare your incapacity and when the Personal Directive (PD) comes into effect;
4. Handling of your personal and medical affairs;
5. Compensation of your Agent(s); and
6. Where to keep your Personal Directive.

The process of preparing your Personal Directive (PD)

Our clients at Edmonton Law Office seek our estate planning legal services because they feel overwhelmed with the many considerations surrounding estate planning, including preparing their Personal Directives. Without the guidance of one of our experienced lawyers, estate planning can be an overwhelming and daunting task.

At Edmonton Law Office, we simplify the process for our clients while educating them along the way. Upon retaining one of our Estate Lawyers in Edmonton, we will guide you through the estate planning process and the process required for the preparation of your Personal Directive in the following ways:

• First, one of our Edmonton Estate Lawyers will share with you a questionnaire where you can provide us with your relevant background information and orient us with your preferred options for planning your estate and Personal Directive;
• Second, we will meet in person or online, whichever you prefer, to assess your wishes and instructions and to provide recommendations to attain the most appropriate estate planning approach for you;
• Third, after our meeting, we will prepare your Last Will and/or Enduring Power of Attorney, as well as your Personal Directive, in accordance with your wishes and instructions. We will then send you the first draft of the documents for your review, make any necessary amendments, and confirm your instructions to get everything in order;
• Fourth, after one of our Estate Lawyers in Alberta receives your confirmation, we will book our second meeting, where we will discuss and sign your documents together to set your wishes and arrange for your estate plan to be legally enforceable; and
• Finally, when the documents have been signed, and everything is in order, we will provide guidance on the safekeeping and storage of the signed originals, while we will retain a copy for our records. Alternatively, our Estate Lawyers in Edmonton can provide you with the option of having your documents retained by the Edmonton Law Office for safekeeping.

Note:

When you are ready to prepare your Personal Directive, we strongly recommend preparing your Enduring Power of Attorney and your Will. The cost to prepare these legal documents together is negligible compared to the cost and emotional distress your loved ones will experience later if you do not have them.

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.

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.

Why make a Personal Directive (PD)

There are invaluable advantages to preparing your Personal Directive:

1. Gives you peace of mind;
2. Helps you plan for when you become incapacitated;
3. Ensures your values and preferences are carried out;
4. Instructs and guides your family in making decisions for you;
5. Helps avoid family disputes regarding appointments; and
6. Avoids complications with Guardianship proceedings.

Note:

A Will only takes effect upon death. If a person only loses their mental capacity due to an illness or accident, they must have an Enduring Power of Attorney and a Personal Directive. At Edmonton Law Office, our experienced Estate Planning Lawyers can provide invaluable education and recommendations in this regard. The alternative to preparing a Personal Directive, for example, may result in a more tedious and time-consuming Trusteeship and Guardianship application that will be presented before a court.

When is it too late to create a Personal Directive (PD)?

If a loved one lacks cognitive capacity and cannot create an Enduring Power of Attorney or Personal Directive, generally, no decisions can be made on that individual’s behalf unless there is a Trusteeship or Guardianship Order. When this happens, that individual becomes a Dependent Adult. Before somebody, usually a family member or a friend can make financial or personal decisions on behalf of the Dependent Adult, an application must be filed in court for an Order of Trusteeship and/or Guardianship, respectively. Contact one of our experienced Trusteeship Lawyers or Guardianship Lawyers in Edmonton, who can assist you in this regard.

Going down this route, however, is usually much more time-consuming and costly than having a Personal Directive or Enduring Power of Attorney drawn up while you still retain capacity. If a person has a Personal Directive or an Enduring Power of Attorney, they do not require a guardian or trustee.

Our experienced Guardianship and Trusteeship Lawyers in Edmonton are here to help!