Power of Attorney VS Personal Directives
Comprehensive estate planning involves more than simply writing a will to take care of matters after you pass away.
You also need to plan for your later years, when you may lose the power to make decisions for yourself and loved ones need to manage your healthcare, living arrangements, and finances.
Family members can’t make decisions on your behalf without the right documents.
But what, specifically, do they accomplish, how do they differ, and what do you need to consider before drafting yours?
Personal directive vs power of attorney
Both personal directives and powers of attorney make plans for later in life if you are unable to express your wishes or lose the mental capacity to do so.
However, these essential estate planning documents achieve different goals.
The purpose of a personal directive is to express one’s preferences concerning healthcare, living arrangements, and the care and education of one’s dependents. You may also hear it referred to as a “living will”.
Within a personal directive, you name an “agent” who will be responsible for you and can make decisions on your behalf should you lose the power to make decisions.
A power of attorney achieves a similar purpose but for financial matters. You can name an agent to make financial decisions on your behalf should you lose capacity.
Together with a will, these documents protect your wishes after you die AND if you lose capacity later in life. They can save considerable confusion and disputes among loved ones because your wishes are clearly documented.
Learn More → What to Consider When Making a Will in Alberta
A personal directive helps you specify preferences concerning living arrangements and personal needs as well as end-of-life care and resuscitation.
WHAT IS A CAPACITY ASSESSMENT?
To make a personal directive in Alberta, you may require a capacity assessment. This assesses your ability to comprehend your situation and the importance of the decisions you make.
Only if you are deemed competent will you be cleared to make a personal directive. The same applies to a power of attorney, will, or other estate planning document in Alberta.
To be valid, there must be two separate assessments of your competence. One assessment can be made by a trusted family member but the other must be from a professional physician or psychologist. Alternatively, two medical professionals involved in your care can perform the assessment.
HOW DO YOU SELECT AN AGENT?
By carefully selecting a suitable agent to act on your behalf, you can enjoy greater peace of mind that if something should happen to you, your wishes will be carried out. This can also help to prevent family squabbles and disputes.
Generally, for your personal directive, you will select one or more loved ones whom you trust to make decisions on your behalf. You should choose an alternative agent in case your primary choice is unable to fulfill the role.
If there are no family members available, the Office of the Public Guardian and Trustee can perform the role.
If you lose capacity, the agent(s) named in the personal directive will assume decision-making power. If you regain competence, you can get reassessed and your decision-making ability can be reinstated.
WHAT DO YOU INCLUDE?
Your agent can provide consent for medical procedures and end-of-life care according to your personal directive (e.g., a Do Not Resuscitate order or organ donor information).
You may also include preferences about where you live and quality-of-life decisions.
A personal directive can also make provisions for the care and education of children or other dependents. If you lose capacity, the agent will be responsible for your dependents until the Alberta courts appoint a legal guardian.
WHAT IS A SUPPORTED DECISION-MAKING DIRECTIVE?
A supported decision-making directive allows you to name up to three chosen agents to access your personal and health information to assist you in making decisions.
This can be used in cases where a person retains some capacity to make decisions and is reluctant to relinquish full decision-making control over their health and medical care to an agent.
Decisions are made together, with the named agent able to assist in making informed decisions and communicating the decision to the relevant healthcare professionals.
A supported decision-making directive is a more informal document than a standard personal directive.
Power of Attorney
A power of attorney allows you to authorize another person (or persons) to make financial decisions on your behalf if you are unable to do so. Without it, a loved one may need court approval to access your funds.
However, it is not quite as simple as that. Two different types of power of attorney exist in Alberta and they serve different purposes.
Immediate power of attorney
An immediate power of attorney can be set up for any time that you are unable to attend to your financial affairs, such as when you’re travelling or temporarily incapacitated.
It authorizes an agent to act on your behalf in a limited capacity but, importantly, you can also make financial decisions transactions, such as banking or real estate transactions.
The immediate power of attorney becomes void if you lose mental capacity—so it’s usually a good idea to set up an enduring power of attorney before that happens.
Enduring power of attorney
An enduring power of attorney is set up for the eventuality that you lose the capacity to handle financial matters.
Once you lose capacity, the attorney or agent named in the power of attorney is responsible for accessing bank accounts, signing cheques, making investments, selling property, applying for government benefits, and so on.
When you make an enduring power of attorney in Alberta, it is a legal document but would only take effect as specified in the document (i.e., should you become incapable of making decisions).
It may never be used—and can be revoked if you have the mental capacity to do so—but it remains an essential estate planning document.
Don’t leave it too late to create your power of attorney and personal directive. Use this form to get started.
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We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
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WILLS and ESTATES LAWYER
Heather Tyminski is a lawyer in the firm’s Calgary office with many years of experience practicing estate law.