OAKNet: Abuse of Older Adults - PERSONAL DIRECTIVES

Index

Personal Directives

What is a personal directive?

What is the role of the agent in a personal directive?

What happens if I do not have a personal directive?

What are the requirements for making a personal directive?

When does a personal directive come into effect?

When does a personal directive end?

What is a personal directive?

A personal directive is commonly known as a living will.

It sets out your wishes for your personal affairs including medical treatment should you become unable to make those decisions yourself.

It sets out what is to happen to you should you lack the capacity to make decisions of a personal nature including medical treatment.

It names the agent (the person you name to look after your personal affairs).

What is the role of the agent in a personal directive?

The agent has the authority to make personal decisions on all personal matters related to you, the maker, unless the directive is specific in its terms.

The agent must follow any directions in the directive when making decisions. If the directions are not clear, then the agent makes a decision based upon what he or she thinks are your wishes, beliefs, and values. If the agent does not know these, then he or she makes a decision about what would be best for you in the circumstances.

Before any decision is made, the agent has a duty to talk to you about a decision that is to be made.

What happens if I do not have a personal directive?

If you become mentally incapacitated or infirm and you do not have a personal directive, a court can appoint a guardian to make decisions on personal matters for you.

NOTE: In Alberta, the Dependent Adults Act applies in this situation.

What are the requirements for making a personal directive?

You must be eighteen years old or over and able to understand the nature and effect of a personal directive.

Included in the personal directive are the following:

the name of the agent or agents, who must be aged eighteen or over and able to make decisions

the extent of their authority (what they can do)

the name of a person or persons who can determine your mental capacity

the name of those who are and who are not to be told about a personal directive coming into effect

instructions with regard to access to your confidential information

The personal directive must be dated, be in writing, and signed by you in the presence of a witness. If you are physically unable to sign, another person can sign on your behalf as long as it is at your direction, and in the presence of you and a witness.

It must be signed by the witness when you are present. A person who is named as an agent in the personal directive, and his or her spouse, cannot witness your signature. Also unable to witness the signing are your spouse, and any person (and his or her spouse) who signs the directive on your behalf.

When does a personal directive come into effect?

It comes into effect when you lack capacity with regard to the matter specified in the directive. A person is deemed to lack capacity when the persons named in the directive to make the determination about mental capacity consult with a physician or psychologist and make a written declaration that mental capacity is lacking.

NOTE: Capacity is defined by the Personal Directives Act as ability to understand information that is relevant to making a personal decision with the ability to appreciate the reasonably foreseeable consequences of the decision.

When does a personal directive end?

you revoke the directive wholly or partly, as long as you understand what you are doing

the directive might state that it is to end wholly or partly on a given date or event occurring

a subsequent personal directive might be made that contradicts an earlier directive wholly or partly

you regain your mental capacity

the court makes an order stating that the directive no longer has effect

NOTE: Any document that revokes a personal directive must be completed in accordance with the same rules for making a directive. Therefore any document revoking the directive must be in writing, signed, dated, and comply with the rules regarding witnesses.

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Updated: October 16, 2003
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