The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This document will explain the options available for people who:
- Wish to appoint someone on their behalf to make personal decisions when they are no longer able to do so or;
- Know a loved one who needs assistance making personal decisions and would like to act on their behalf.
There are many options available depending on you or your loved one’s capacity. Consider these options like a sliding scale with a Personal Directive being available to you when you are fully mentally capable and with Guardianship as an option for your loved ones when you are no longer mentally capable.
A personal directive gives you the power to choose a loved one to make personal decisions on your behalf when you become mentally incapable of doing so yourself. Mental incapacity occur for many reasons such as experiencing a stroke, Alzheimer’s or mental illness. A Personal Directive allows you to plan for your future by giving you the opportunity to choose a trusted person (or multiple people) to make personal decisions that impact your life. The person you choose to make decisions on your behalf is called an “agent”. Your agent can make decisions on all personal matters surrounding your life, including but not limited to:
- Living arrangements
- Care for your children (if they are minors)
NOTE: They cannot make financial decisions on your behalf which includes handling your property. (See Power of Attorney/Trusteeship—provide hyperlink).
How Much Power Does My Agent Have?
When creating a personal directive, you can decide how much power you would like your agent to have. You can specify what your agent can and cannot do. For instance, you can choose to have your agent control all your personal decisions or you can limit your agent to only make decisions about your health.
How Should I Choose My Agent?
Your agent should be someone you trust to look after you when you no longer have the mental capacity to make decisions on your own. Your agent should be trustworthy and responsible. It is the duty of your agent to act ‘in good faith’ and make decisions with your best interest in mind. When choosing a person to be your agent, you should pick someone who understands your values and what’s important to you. For example, someone who understands your religious convictions and your preferences and can make decisions that you would have made. In law your agent must be over the age of 18 and be mentally capable of making decisions.
How Do I Create A Personal Directive?
It is recommended to speak to a lawyer when drafting a personal directive.
To start it is important to talk to your agent and ensure that they are willing to act on your behalf when you lose capacity. Then you can fill out a form and write detailed instructions on what powers you would like to give to your agent. Remember you can make your instructions as specific as you like. For instance, you can ask that your agent only make decisions on your medical procedures. More details on how to file a Personal Directive as well as a sample guide to assist you can be found here. Your Personal Directive must be signed by you and you must be mentally capable at the time of the signature. You will also need a witness to sign in front of you. Your witness cannot be your agent, your agent’s spouse, your spouse, the person who signs the Personal Directive on your behalf (if you are physically unable to sign), nor their spouse. Once it is signed you should keep a copy for yourself and a copy for your agent and any other people you believe should have a copy.
When Does My Personal Directive Take Effect?
If you have signed a Personal Directive, it will come into effect the day you are no longer mental capable, unless otherwise stated.
How Can I Cancel My Personal Directive?
Your Person Directive can come to an end if
- You request it to end before you lose mental capacity
- You pass away
- You regain capacity
- Through a court order
What If I Only Require Some Assistance Making Personal Decisions?
In accordance with the Adult Guardianship and Trusteeship Act, a person can decide to choose a loved one to assist them in making decisions if that person is still somewhat capable and only requires some help. There are two options you can choose when deciding what’s best for you or your loved one.
If you or a loved one require some assistance with decisions, then this is the best option. This option allows you to bounce your ideas off a “supporter”. The Supporter does not make decisions on your behalf but assists you in making your own. Individuals who may have language barriers or are facing a difficult decision may benefit from this option. You must have capacity when opting into a supported decision-making authority. It is important to remember that although you have a supporter, ultimately, the final decision is your own. Your supporter cannot make decisions on your behalf. This option does not require you to file anything in court.
A co-decision-making option should be considered when you or a loved one’s decision-making abilities are severely impacted but you are still able to make decisions with some help. This option allows you and someone you trust to make personal decisions together. If the adult requesting the assistance and their co-supporter cannot agree on a decision, the adult’s decision prevails.
Setting up Co-Decision-Making Authorization
Setting up co-decision-making authorization requires a more formal process compared to supported decision-making. In order to opt into co-decision-making, the adult who requires the assistance must complete a “Capacity Assessment Report” made by a health care professional. More information about this report can be found here. This will allow the court to understand the extent of the adult’s mental capabilities. Then you and your loved one should draft a plan which will lay out all the details for this order. It should be specific enough that the guidelines set out in the plan are clear. Once a plan is created an order must be made to the court. This can also be done through something called a “desk application”. A desk application allows you to file the necessary paperwork with a clerk instead of a judge, if there are no contested issues. Once it is filed a judge will review your application.
Can Co-Decision-Making Authorization Come to An End?
Yes, there are many ways that a co-decision-making option can end, such as:
- The dependant adult terminating the order
- A guardianship order is granted
- A personal directive is activated
- A trusteeship order is created
NOTE: You cannot choose co-decision-making or supported decision-making if you have a trusteeship order, If you would like to choose To have these options but would also like a trusteeship, you can consider opting into an informal trusteeship.
A Guardianship Order can be created where an adult has lost mental capacity and can no longer make personal decisions on their own. Mental incapacity can occur for many reasons such as experiencing a stroke, Alzheimer’s or mental illness. A trusted individual such as a family member or close friend, can apply to the court and become a “guardian” for a “represented adult”. A guardian will have complete authority to make decisions on the represented adult’s behalf. Some of these decisions can include:
- Living arrangements
- Care for your children (if they are minors)
A guardianship order differs form a personal directive because it is created after the represented adult has lost mental capacity and is only ordered IF the represented adult did not make a personal directive when they were mentally capable of doing so.
How Do I Become A Guardian for My Loved One?
To become a guardian, you must first ensure that your loved one did not create a Personal Directive (create hyperlink to top of the page). If no personal directive was created, the person wanting to become a guardian must then create a guardianship plan. This plan will outline in detail the powers and responsibilities the guardian has and all the personal decisions both present and future, that the guardian will make. The guardian cannot make any decisions regarding the represented adult’s property or finances (see power of attorney & trusteeship—provide hyperlink). Before filing your application and guardianship plan to the court, the represented adult must complete a “Capacity Assessment Report” by a health care provider. More information about this report can be found here. You can then file the necessary paperwork to the court or through a “desk application” if there are no contested issues. The judge will then review your application.
In order to become a guardian, the Court must be satisfied that you meet certain requirements:
- You will act in the best interest of the dependent adult, and give them every opportunity to become independent as much as they can;
- That you will not be in a conflict position where you may put your interests or priorities before the dependent adult;
- That you are a suitable position to act as a guardian;
- That you are over the age of 18; and
- You are mentally capable of acting as a guardian
Self-help kits for guardianship applications are obtainable from the Office of the Public Guardian or can be found in registries. These self-help kits are not intended for contested application. You may wish to call one of the following numbers for further assistance: Calgary Office 403-297-3364, Edmonton Office 780-437-0017, Lethbridge Office 403-381-5648, Red Deer Office 403-340-5165 and elsewhere in the Province, you can call the Government RITE line (310-0000) to get connected with one of these offices.
The applicant or the dependent adult usually pays for the application. If it poses a hardship on you the Government of Alberta may, through the Office of the Public Guardian, fund a portion of the legal fees and costs to a maximum of
· $325 plus disbursements for a desk application, or
· $375 plus disbursements if a Court hearing is involved
If you wish to remove a guardian or to terminate an Order, you should consult a lawyer.
For more information about this topic visit the Centre for Public Legal Education Alberta.