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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
By Personal Directive or Enduring Power of Attorney you can appoint a person or person you trust to make decisions for you, at a future time, when the condition of your brain won’t let you decide. Here the word “Attorney” does not mean a lawyer. In this context it means a person who decides or does things for you (your Agent). You could become unable to make your own decisions because of a brain injury, Alzheimer’s or other cause. It could be temporary or permanent.
No person, not even your spouse, daughter or son has the legal right to decide for you about your personal matters unless you appoint (assign) that person by your Personal Directive or a Court appoints (assigns) a person. No person has the legal right to look after your money or business matters for you, unless you appoint that person by an Enduring Power of Attorney or unless a Court appoints that person.
You can make a Personal Directive or an Enduring Power of Attorney only if you do it ahead of time. That is, before your brain has been damaged or is sick and you can’t think well enough to make your own decisions. If a Court has to appoint someone because you didn’t make a Personal Directive or an Enduring Power of Attorney, there will be costs to pay out of your money.
Before you appoint any person as your Agent or as your Attorney, you should get that person’s okay (acceptance) to be your Agent or your Attorney. You should also talk over with your chosen person or persons any special wishes or intentions you may have about your personal matters or your money matters of business matters.
There is no special form for a Personal Directive or for an Enduring Power of Attorney. They can be handwritten or typed. You don’t absolutely need a lawyer to get those papers ready, but a lawyer can be a really big help. Most people go to a lawyer to prepare such papers.
If you want to, you can appoint as your Agent or Agents in your Personal Directive, the same person or persons as you appoint to be your Attorney or Attorney’s in your Enduring Power of Attorney. It can be a good idea to say in your Enduring Power of Attorney that your Attorney or Attorneys must give up-to-date reports to another person whom you trust and to put that person’s name in your Enduring Power of Attorney.
There are important differences between a Personal Directive and an Enduring Power of Attorney:
Personal Directive: By a Personal Directive you appoint someone you trust to decide for you about your personal matters. That is, about everything except money matters and business matters. For example, that trusted person would have to agree if your doctor was going to operate on you, or which long term care place you should go to. That trusted person is called your “Agent”. By your Personal Directive you can appoint more than one Agent. It is usually best to have no more than two.
It is a good idea to write this in your Personal Directive: “This is a Personal Directive under the Personal Directives Act”. In your Personal Directive you should write any special wishes or instructions you may have.
You must date and sign your Personal Directive in the presence of one witness. The witness must not be your spouse or your Agent or the spouse of an Agent.
You can cancel your Personal Directive at any time while you are able to make personal decisions. You can cancel by writing across it that it is cancelled and signing your name. Or, you can just tear it in two. You should be absolutely sure to tell everyone who has a copy of your Personal Directive that it is cancelled.
You can get more information about the Personal Directives Act by buying a set of 3 booklets for $10 from the Queen’s Printer Bookstore. In Calgary, you can call that store at 403-297-6251. The number to use in Edmonton is 780-427-4952. Elsewhere in the Province you can call the government RITE line at 310-0000.You can download those booklets free of charge from the Internet address:
www.health.gov.ab.ca/public/document/pdguide.htm
You can also speak to a Personal Directives Specialist at the Office of the Public Guardian. In Calgary the number for reaching that Specialist is 403-297-3364. In Red Deer it is 403-340-5165. In Edmonton is it 780- 427-0017. Outside those cities go through the government RITE line at 310-0000.
Enduring Power of Attorney: An Enduring Power of Attorney is different. By it you appoint someone you trust to decide for you about money matters and business matters. For example, that person would write your cheques, make your bank deposits, pay your bills, etc. That trusted person is called your “Attorney” (your Agent), but is not your lawyer. By your Enduring Power of Attorney, you can appoint more than one person to be your Attorneys. It is usually best to have no more than two. You can appoint a person both as an Agent in your Personal Directive and as an Attorney in your Enduring Power of Attorney. You should include any special instructions or wishes you may have about your investments, savings or other money affairs.
In your Enduring Power of Attorney you must say when you want it to take effect. You have a choice: Either you can say that it takes effect when a doctor certifies that you are unable to make business or financial decisions, or if you do not want to be bothered any more about looking after your own money or business matters, you can say that it takes effect right away.
You should be sure to say that your Enduring Power of Attorney stays in effect whenever a doctor has certified that you are unable to make decisions in business or money matters. It is a good idea to put these words in your Enduring Power of Attorney: “This is an Enduring Power of Attorney under the Power of Attorney Act”.
You can cancel your Enduring Power of Attorney at any time while your mind is clear enough to make decisions in business or money matters. You can cancel by writing across it that it is cancelled and signing your name. Or, you can just tear it in two. You should be absolutely sure to tell everyone who has a copy of your Enduring Power of Attorney that it is cancelled.
You must date and sign your Enduring Power of Attorney in the presence of one witness. The witness must not be an Attorney you have appointed, or the spouse of yourself or the spouse of an Attorney.