As mature adults, you are considered able to make decisions about your personal life and finances. When you are no longer able to make such decisions and you do not have an enduring power of attorney or a personal directive, the legal system takes over by appointing a guardian or trustee to look after your affairs. If you have an enduring power of attorney or personal directive, it may become effective.

A guardian or trustee can only be appointed to look after your affairs after a physician or psychologist has examined you. The medical expert has to prepare a report that will be used to support a court application for the appointment of either a guardian or trustee. Another way in which the Public Trustee might be appointed to look after your financial affairs is by the issuance of a certificate of incapacity for someone who has been living for any length of time in a facility. This procedure does not require a court application, but does require separate examinations and reports from two physicians. There is also a right of appeal from this process.

To make sure that your affairs are taken care of in the way that you would want when you are no longer capable, you may want to consider preparing some legal documents now. The three documents are:

• Enduring Power of Attorney - a legal document whereby you give authority to another person or persons to act on your behalf in relation to your financial matters when you are no longer able to make decisions or at a time that you indicate in the document.

• Personal Directive - a legal document stating who and how you want your health and other personal matters to be handled when you are no longer able to make such decisions.

• Will - a legal document stating how you want your possessions and properties distributed upon your death and by whom.

Understanding consent for medical treatment

You generally have the right to accept or refuse medical treatment—as every adult does. A doctor requires your consent before treating you except in an emergency situation where the doctor can treat without consent if the treatment is to preserve your life or health. The only way in which you could lose the ability to make decisions about medical treatment is if you are mentally incapacitated and are the subject of:

• an effective guardianship order
• a personal directive
• an order under the Mental Health Act

If you have a guardian appointed to act for you, the guardian must make decisions about medical treatment that are in your best interests.

If there is a personal directive, agents must make decisions that follow the terms of any personal directive you made or in the manner that they believe you would have made if you were able.

Requirements of consent to medical treatment

• You must be legally able to give consent to treatment. If you are the subject of a guardianship order in respect of medical decisions, you are not able legally to make decisions about your medical treatment yourself.
• You must be mentally able to allow the medical treatment. That is, you can make a reasoned choice about the treatment in that you understand the consequences of the decision being made.
• There must not be any pressure on you to make the decision. The decision must be freely given.
• Any consent to medical treatment must be an informed consent. This means that the medical professional must give you enough information about the medical procedure for you to be aware of the risks and benefits. You must also be informed of all treatment options.

If a doctor does treat you without your agreement, or without fully informing you about the medical procedure, you could sue the doctor in the civil courts for battery.

Battery is an interference with another person's body without consent. The courts have found that it is also a battery to treat a patient who is not able to consent to medical treatment if the doctor knew that, when the person was able to consent, she or he did not want to have the treatment.

The Dependent Adults Act allows a doctor or dentist to examine you, and prescribe and provide medical, dental, or obstetric treatment that is reasonably necessary without your consent where:

• two doctors or dentists have confirmed in writing that you need the medical treatment
• you are incapable mentally or physically of understanding and agreeing to the treatment
• you have not previously refused consent for the treatment to the knowledge of either of the doctors or the dentists making the written report.

NOTE: Important changes to the Dependent Adults' Act in 2009

Before the end of 2009, the Government of Alberta will bring into force the Adult Guardianship and Trustee Act (AGTA). The AGTA will replace the current Dependent Adults’ Act. Once proclaimed, the AGTA will make important changes to decision-making for adults who lack capacity. As a result, some of the information presented here will soon be outdated. These changes, however, only affect situations where an Enduring Power of Attorney and Personal Directive have not been made.

In brief, the AGTA will do the following:

• Avoid an “all or nothing” approach to mental capacity, by recognizing different levels of
  decision-making ability.
• Provide a range of decision-making options that allow adults to receive assistance with personal and financial decisions according to their needs while keeping as much autonomy as possible in their circumstances.

Although these new AGTA options will allow more flexibility in situations where an Enduring Power of Attorney or Personal Directive has not been made, it is still best for a person to have these documents made before any lack of capacity occurs. This will ensure more control over future personal and financial matters and provide greater peace of mind for loved-ones.

More information AGTA, and the choices it provides, can be found on the Alberta Seniors and Community Supports website at:
www.seniors.gov.ab.ca/services_resources/opg/guardianship/index.asp.

In addition, you can access the current draft of the Act, known as Bill 24 of 2008 at:
www.assembly.ab.ca/bills/2008/pdf/bill-024.pdf.

Return to Planning for the Future

Updated: October 14, 2003
© Legal Resource Centre of Alberta Ltd. 2002
OAK-Net: Abuse of Older Adults
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