More on Personal Directives
Who is a relative for the purposes of the Personal Directives Act? Specific directions required for some items Duties of agent under a personal directive Effect of personal directive Court review of directive Rules regarding service providers under the terms of a personal directive Providing medical service in an emergency situation Offence
Who is a relative for the purposes of the Personal Directives Act?
When you write a personal directive, the Act makes several requirements for contacting your nearest relative. For the purposes of the Act, this means in order of priority:
NOTE: A husband or wife includes common law spouses. Full blood relatives have priority over half blood relatives.
Specific directions required for some items
The agent cannot make decisions on some matters unless the personal directive specifically gives the agent that power. These items are:
Duties of agent under a personal directive
An agent has all the legal duties that may be imposed by the terms of a personal directive. The Personal Directives Act also imposes duties that will apply whether or not they are included in the written personal directive.
Your agent must keep records of personal decisions that he or she makes during the time that you lack capacity. The records must be kept for two years after the agent has stopped acting. During the time that the agent keeps the records, copies must be given to:
The agent can also provide a copy of the record to anyone else if the agent feels that it is in your best interests to do so.
NOTE: An agent can only be paid for work done under the personal directive if the directive states that is to be the case.
A personal directive can appoint more than one agent. It is advisable to deal with the relative authority of agents if more than one is appointed. For example, one agent may be given the casting vote in the event that there is disagreement on a decision under the directive, or provide some other mechanism for resolving different opinions. If there is no such mechanism, the Act provides that the majority vote prevails.
If the directive does not state who is to communicate decisions where there is more than one agent, the Act provides that the agent appointed first is given that task.
An agent is protected by the Act against any liability for acts carrying out the terms of the directive that are taken in good faith. The agent is also protected from liability where you changed or revoked the directive or the authority of the agent without telling the agent.
An agent can have access to any of your confidential information and records that are relevant to any personal decision to be made or to your mental capacity. This provision overrides any other statute that may limit access by the agent, but at the same time access may be limited by the terms of the personal directive. When the agent has the confidential information, it can only be used to carry out his or her job under the directive or to determine your capacity.
Effect of personal directive
Any personal decision made by an agent named in a personal directive has the same effect as if you had made the decision while you had your mental capacity.
If an agent makes a decision under a personal directive within a reasonable time after the directive becomes effective, the agent must make a reasonable effort to notify your nearest relative and your legal representative that the directive is in effect.
The legal representative is an attorney under the Powers of Attorney Act or a guardian or trustee under the Dependent Adults Act.
Court review of directive
You, or anyone else with an interest, can apply to the Court of Queen's Bench for a review of your directive. Notice of the application must be given to you, your legal representatives (an attorney under the Powers of Attorney Act or a guardian or trustee under the Dependent Adults Act), and your nearest relative. However, the court can vary the rules for service if it considers it appropriate in the circumstances and even order that the application be dealt with on an ex parte basis. Ex parte means that the matter is heard without notice to others.
After reviewing the directive, the court can make several orders as follows:
Rules regarding service providers under the terms of a personal directive
A service provider is defined by the Act as someone who carries on a business or profession that provides personal service to individuals that requires a personal decision from the individual before the service can be provided. For example, health care workers would be providing a service that requires a decision from an individual before the service can be provided. The Act grants service providers the authority to provide personal services as long as it is done in accordance with the Act.
The Personal Directives Act provides rules that govern the provision of personal services contained in a personal directive.
Where a personal directive is in effect the service provider must follow relevant instructions of the agent, or if there is no agent or the agent is unwilling to act, follow the instructions of the directive.
If there are no clear instructions in the directive and no agent that is available or willing to act, the service provider must contact your nearest relative. If there is no relative the service provider must then contact your legal representative.
The legal representative is an attorney under the Powers of Attorney Act or a guardian or trustee under the Dependent Adults Act. If there is no legal representative, the Public Guardian must be contacted.
Even though it may have already been determined that you lack capacity to make personal decisions, the service provider is under a continuing duty to ensure that you do not have capacity.
If the service provider feels that you have regained capacity, he or she must inform the agent under the directive before acting on a decision made by you. The agent can give permission for the service provider to act on the decision.
If the agent does not give permission for the service provider to act, the service provider would have to ask a court for directions on your capacity before acting on your personal decision.
A service provider has a duty to check that someone claiming to be an agent with authority to give the service provider permission to act, does in fact have that authority. That can be checked, for example, by seeing identification evidence of the agent and by checking the terms of the personal directive.
A service provider is protected by the Act against any liability for acts carrying out the terms of the directive which are taken in good faith. The service provider is also protected from liability where you changed or revoked the directive or the authority of the agent without the knowledge of the service provider.
Providing medical service in an emergency situation
The Personal Directives Act gives health care practitioners permission to provide emergency medical services to a person who appears to lack mental capacity in a situation where:
After providing the emergency medical service, the health care practitioner must try to contact in the following order:
Offence
It is an offence to intentionally destroy, steal, hide, or alter a personal directive or a document that revokes a personal directive without the consent of the maker of the directive. The offence carries a fine of up to $10,000.
It is also an offence to require a person to make a personal directive as a condition for obtaining residential accommodation or for continuing to live in residential accommodation. The offence carries a fine up to $10,000.
Funding for OakNet is provided by the Alberta Law Foundation.
Updated: November 13, 2003
The legal representative is an attorney under the Powers of Attorney Act or a guardian or trustee under the Dependent Adults Act.
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