Planning for Disability

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.

Personal Directives and Enduring Powers of Attorney are special legal documents that you can prepare now which allow you to appoint a person or people that you trust to make decisions for you if, at some point in the future, you are not able to for yourself.  Enduring powers of attorney appoint someone to handle your financial and legal matters.  Personal directives appoint someone to look after your personal matters, such as your medical care and where you live.  An example of this might be if you were in a bad accident and then landed up in a coma.  If you had an Enduring Power of Attorney already in place, the person you appointed could pay your bills and look after your investments.  If you also had a Personal Directive, the person you appointed could make medical decisions on your behalf.

When we talk about enduring powers of attorney the word “attorney” does not mean a lawyer. In this context it means a person who decides or does things for you.  When we talk about person directives, this person is called an “agent” instead of an “attorney,” however “agent” also means a person who decides or does things for you.  The main reason people create personal directives and enduring powers of attorney is because no one knows when they might become unable to make decisions on their own due to a brain injury, Alzheimer’s disease or other causes.  When you lose the ability to make decisions for yourself could be temporary or permanent.  If you later regain the ability to make decisions on your own, your agent and attorney lose the powers you gave them to look after you.

No one, including your spouse and children, has an automatic legal right to make decisions for you about your personal matters unless you give that person the authority by way of a Personal Directive or unless a Court appoints a person to do this on your behalf. No one, including your spouse and children, has an automatic legal right to look after your money, investments, business, or real estate matters for you, unless you give that person the authority by way of an Enduring power of attorney or unless a Court appoints a person to do this on your behalf

Making a personal directive and an enduring power of attorney is usually quick and easy, however you can only create these documents if you do it ahead of time while you are able to care for yourself and make decisions on your own.  If your brain has been damaged or if you are sick or if you otherwise can’t think well enough to make your own decisions, you are not able to create these documents.  If a Court has to appoint someone to look after your matters because you did not make a Personal Directive or an Enduring Power of Attorney, it will cost your family or friends a lot of money to obtain the court order, and possibly a lot of time to do so as well.

Before you appoint any person as your Agent or as your Attorney, you should talk to that person and make sure that they feel comfortable performing these roles for you.  You should also talk to your agent and attorney about any special wishes or intentions that you may have about your personal matters, your health, your money and investments, and your business.

There is no special form required to create a Personal Directive or Enduring Power of Attorney. They can be handwritten or typed.  You are not required to use a lawyer to create these documents, however a lawyer can help you to ensure that the documents are valid and to ask questions about topics you may not have thought about.  Most people do go to a lawyer to prepare these documents.

You can have one agent or multiple agents in your personal directive.  You can also have one attorney or multiple attorneys in your enduring power of attorney.  Your agent and your attorney can be the same person if you want them to be.  Often times people will also appoint a backup agent and a backup attorney in case their first choice has passed away or is unable to perform their duties.  If your agent or attorney is not your spouse or family member and you want your family to be aware of what your agent or attorney is doing on your behalf, you can indicate in your enduring power of attorney and in your personal directive that your agent and attorney must give periodic update reports to anyone you wish to specify.

There are important differences between a Personal Directive and an Enduring Power of Attorney.

Personal Directive:  In a Personal Directive you appoint someone that you trust to make decisions for you about your personal matters.  This person is called your agent.  The term personal matters include everything except managing your money, your investments, and your property.  Some of the things commonly specified in personal directives as falling within the term of “personal matters” includes what medical treatments you may or may not receive, where you may live, with whom you may associate, and whether or not you may engage in particular work or recreational activities.  However, you can also limit the power that your agent has.  For example, you may indicate that your agent can make all medical decisions for you, except you do not wish to be placed on a ventilator.  If you decide to appoint more than one agent, you should specify how any disagreements between the multiple agents will be resolved such as by majority rule or requiring unanimous consensus.

Personal directives in Alberta are governed by the Personal Directives Act.  You should consult this legislation if you are drafting your own personal directive as there are certain things that you must do in order for your personal directive to be valid.  For example you must date and sign your Personal Directive in the presence of at least one witness and the witness must not be your spouse or your Agent or the spouse of your Agent.

You can cancel your Personal Directive at any time while you are still able to make personal decisions on your own.  To cancel the document, you can shred it, write “cancelled” across it, or otherwise destroy it.  If you are cancelling a personal directive, and other people have copies of this document you should ask that they be returned so you can destroy those as well.  Once you lose the ability to make decisions on your own, you can no longer create, alter, or cancel a personal directive.

For more information about personal directives you can download information guides from https://www.alberta.ca/personal-directive.aspx.  You can also purchase paper copies of the guides from the Queen’s Printer Bookstore.  To contact the Queen’s Printer Bookstore In Calgary, you can call 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.

Enduring Power of Attorney:  An Enduring Power of Attorney is different than a personal directive.  In a Enduring Power of Attorney you appoint someone that you trust to make decisions for you about your financial and property matters.  This person is called your attorney. Some of the things commonly specified in an enduring power of attorney is the power to pay your bills, the power to do your taxes, the power to continue running your business, and the power to buy, sell, or lease real estate.  However, you can also limit the power that your attorney has.  For example, you may specify that your attorney has access to all of your banak accounts, investments, and other assets but they have no power to sell your house, mortgage your house, or lease your house out to renters.  If you decide to appoint more than one attorney, you should specify how any disagreements between the multiple attorneys will be resolved such as by majority rule or requiring unanimous consensus.

Enduring Powers of Attorney in Alberta are governed by the Powers of Attorney Act.  You should consult this legislation if you are drafting your own enduring power of attorney as there are certain things that you must do in order for your enduring powers of attorney to be valid.  For example, you must date and sign your enduring power of attorney in the presence of at least one witness and the witness must not be your spouse or your attorney or the spouse of your attorney.

You can cancel your enduring power of attorney at any time while you are still able to make personal decisions on your own.  To cancel the document, you can shred it, write “cancelled” across it, or otherwise destroy it.  If you are cancelling a enduring power of attorney, and other people have copies of this document you should ask that they be returned so you can destroy those as well.  Once you lose the ability to make decisions on your own, you can no longer create, alter, or cancel an enduring power of attorney.

For more information about enduring powers of attorney you can visit https://www.alberta.ca/enduring-power-of-attorney.aspx.  You can also purchase paper copies of information relating to enduring powers of attorney from the Queen’s Printer Bookstore.  To contact the Queen’s Printer Bookstore In Calgary, you can call 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.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.