Enduring Power of Attorney Vs. Personal Directives

Most people in Alberta know that they need to make a last will and testament at some point in their lives.

But there are two other essential estate planning documents that far fewer people are either aware of or get around to creating.

If a person loses mental capacity or faces a medical emergency that leaves him/her unable to make financial and healthcare decisions in the future, it can lead to considerable problems for family members.

An enduring power of attorney and personal directive help decide matters that may affect a person while still alive — unlike a will, which directs matters after death.

Let’s take a look at the importance of creating these estate planning documents, what they should cover, and how you can go about drafting them.

Learn More → How is a Power of Attorney Different from a Personal Directive in Alberta?

What is an enduring power of attorney in Alberta?

An enduring power of attorney is a legal document that allows you (the “donor”) to nominate a trusted individual (the “attorney”) to make financial decisions on your behalf if you lose mental capacity or are otherwise medically incapable of doing so.

The responsibility includes accessing bank accounts, paying bills, investing assets, collecting debts, and maintaining or selling property: ultimately, any financial actions you would normally take yourself.

An enduring power of attorney differs from other types of power of attorney that provide temporary or more limited powers for financial decision-making.

Why consider making an enduring power of attorney?

If you live in Alberta and want to ensure protection for yourself and your loved ones as you age (or in the event of a medical emergency, such as an accident), you should consider making an enduring power of attorney.

People frequently have to confront unexpected medical situations. Unless you have an enduring power of attorney in place at that point, your loved ones will need to apply through a time-consuming court process for an order that provides the authority to make financial decisions for you. This can mean that funds are locked up, bills go unpaid and debts go uncollected.

If an enduring power of attorney has been properly drafted, your nominated attorney can step in and immediately start managing your financial affairs for you.

It is important to nominate a trusted individual who is financially savvy and can provide peace of mind for you and your loved ones that if something happens to you, a capable individual will look after the finances. Consider it as “disability insurance” that you hope you never need to activate.

What is a personal directive in Alberta?

A personal directive is another type of power of attorney document but instead of dealing with financial matters, it deals with personal care and healthcare matters.

By creating a personal directive in Alberta, you authorise a nominated individual (an “agent”) to make these decisions on your behalf if you lose mental capacity or are otherwise medically incapable of making personal care and healthcare decisions for yourself.

The types of matters included in personal directives are healthcare decisions, life support measures, living and housing arrangements, meal preferences, clothing preferences, and so on.

Most people choose a spouse or other close relative that they trust to act as their agent.

Is a healthcare directive the same as a living will?

A healthcare directive is similar to what’s called a “living will” in some other jurisdictions. A living will details a person’s wishes for medical treatment or end-of-life care.

Alberta does not have living wills. Instead, these instructions are usually specified by an individual in a personal directive.

Why consider making a personal directive?

You would consider making a personal directive if you live in Alberta and want the peace of mind of knowing that if you are involved in a medical emergency or lose mental capacity, a trusted loved one can make personal care decisions on your behalf.

A personal directive can save confusion and stress for family members should something happen to you. They are not just about end-of-life care. Many people suffer incapacitating medical emergencies before old age and a personal directive ensures that you maintain control over the key decisions that affect your life and well-being, like where you live and what you eat.

Note that a personal directive does not include the power to make financial decisions on your behalf if you lose mental capacity. That authority can only be provided via an enduring power of attorney.

How do you make an enduring POA and/or personal directive in Alberta?

Once you become an adult, you’re never too young to consider making an enduring power of attorney or personal directive.

However, creating these documents requires attention to the necessary legal processes if you want the powers you grant to be recognized by the Alberta courts.

Technically, you don’t need a lawyer to create an enduring power of attorney or personal directive but you will need to ensure the following:

• You are of sound mind and over the age of 18
• The document is printed and stored as a physical document rather than digitally
• The document is signed in the presence of two valid witnesses, who must also sign it
• The signatures are in wet ink and at the very end of the document (no digital signatures)
• The document must clearly state that it continues or springs into effect when the donor loses mental capacity

You can store your documents in a fireproof safe in your home and/or with your lawyer (with instructions on when to release them).

Keeping the main regulations in mind, you have several options for creating powers of attorney and personal directives in Alberta:

• With a lawyer’s assistance: most people have unique wishes or require legal advice before they complete important estate planning documents. You can discuss your power of attorney and personal directive needs with a competent and experienced estate planning lawyer.
• Online power of attorney platforms: while these may appear a convenient and affordable option for creating POA documents, don’t forget that digital versions are not legally recognized yet in Alberta.
• Fill-in-the-blank forms: this is the cheapest option, allowing customers to complete templated forms at an office supply store or post office. Bear in mind that they cannot accommodate customized requests or non-standard wishes and may not be legally enforceable unless you comply with Alberta’s estate laws.

Once you’ve completed your personal directive and/or enduring power of attorney, you don’t have to register it with the Office of the Public Guardian and Trustee but it is a good idea to do so.

If you’re considering creating an enduring power of attorney or personal directive, an experienced lawyer at Vest Estate Lawyers in Calgary can discuss your options during an initial consultation.

Learn More → How to Make a Power of Attorney in Alberta