PREPARING YOUR PERSONAL DIRECTIVE – TIPS
A Personal Directive (or “Living Will”) is a document that appoints one or more individuals as your “Agent” to make decisions regarding your health and medical treatment, should you become incapable of making these decisions for yourself. There is no legal requirement to have a Personal Directive, however, we strongly recommend that you do, since it’s the only way to ensure that these difficult decisions are made by people you know and trust, and who understand and will carry out your specific wishes. As with a Personal Representative, we recommend appointing one or more alternate Agents, in the event your first choice predeceases you, or becomes unable or unwilling to act in that capacity.
It is common for individuals to name their spouse or partner as the first choice for Agent, followed by trusted family or friends named as alternate Agents. You may also name one or more individuals to act as “joint” Agents, considering how to resolve conflict between them if they don’t all agree (majority decision or one named person are two ways to resolve such a conflict).
Care of Minor Children
You may consider appointing one of the agents noted above (or a different one) to temporarily care for any minor children in the event that you become incapable of making decisions for yourself.
There are different ways to draft a Personal Directive, but each will have a clause identifying a specific event that triggers the Personal Directive into effect with wording such as: “I will be declared lacking capacity for any such personal decisions when my Agent and one medical practitioner signs a written declaration to that effect, as required by the Regulations to the Personal Directives Act.”
You may add other considerations to this clause, such as more than one doctor making the declaration of incapacity.
When you sign a Personal Directive, you will be granting your Agent(s) authority to make personal decisions on your behalf, including things such as:
- Your health care;
- Your housing accommodation;
- People with whom you may live and associate;
- Your participation in social, educational and employment activities; and
- Legal matters not related to your Estate.
Your Personal Directive will include directions for your Agent regarding health care decisions on your behalf, including wording such as:
- My Agent has full authority and sole discretion to make all health care decisions on my behalf, in consultation with my attending physician, and to instruct my health and personal care service providers as my Agent may see fit.
- I do not wish my life to be prolonged by artificial means when I am in a coma or persistent life supported state and have, in the opinion of my physician and other consultants, no known hope of regaining awareness and higher mental functions, no matter what is done.
- I wish medical personnel to make reasonable efforts to resuscitate me as may be required, but failing a positive response or recovery, I wish to be made comfortable and permitted to die naturally without the intervention of extraordinary life-support measures.
- I wish to be kept comfortable and free from pain by the use of medication, even though it may dull consciousness and indirectly shorten my life.
There are other considerations you may add, including wording regarding organ donation, which can be discussed with your lawyer drafting the Personal Directive.
Peace of Mind for You and Your Family
In the hopefully unlikely event that you are incapacitated, having a Personal Directive in place provides your family with peace of mind and direction – telling them exactly what your wishes are so they don’t have the difficult burden of these tough choices when you can no longer make them yourself. In your Personal Directive (or Living Will) you can leave instructions concerning things such as:
- Who should act for you if you cannot act on your own;
- Medical treatments you are willing to receive;
- Medical treatments you do not want to receive;
- Access to your personal medical information; and
- Life support procedures and pain medication.
The Personal Directive only takes effect if you are deemed to be mentally incompetent or medically incapacitated. Your Agent will be legally able to make these important health care decisions in those stressful and difficult moments where you are no longer capable of doing so.
Personal directives do not contain instructions related to financial matters – these are handled in a “Power of Attorney” document. A Personal Directive is only valid if it is properly dated and signed by the person making it, and witnessed.
Without a Personal Directive in Place …
Should you become mentally or physically incapacitated without a Personal Directive in place:
- Your family or loved ones may fight about the best health care decisions for you, not knowing what your wishes might be.
- Important health care decisions may be delayed until the Court can appoint a guardian to make these decisions on your behalf.
- Your specific wishes regarding things like life-support, pain medication, and organ donation may not be given effect, as people may not know your wishes.
Additional Information about Personal Directives
- It is common for two people to be named to assess your mental capacity and declare you incompetent. One of these must be a doctor or a psychologist licenced to practice in Alberta.
- You can name a trusted person (Agent) to assess your capacity along with a doctor or psychologist.
- If you do not name anyone, another service provider in addition to the doctor or psychologist may assist in your assessment.
- If you were to regain capacity to make decisions (either fully or in part) you, your Agent, or a service provider can ask for a re-assessment.
Please feel free to contact us if you have any questions that aren’t answered on our site, or to schedule an appointment. We’re always happy to chat with you about any of your legal needs.
- Phone: (587) 272-2050
- E-mail: firstname.lastname@example.org