You may have heard of the terms “power of attorney,” personal directive” or “living will” in relation to estate planning.
They are part of advance care planning, whereby you can prepare for making key decisions in the future if you become sick, injured, or incapacitated.
This is separate from your will, probate, trust planning, and other estate planning measures that look after your financial affairs after you are gone.
With an aging population, advance care planning is an important step for many families in Alberta. If you were to lose mental capacity from a serious accident, advance care planning measures can also help your family make decisions for you.
However, it can be difficult to discuss such matters.
At Vest Estate Lawyers in Calgary, our family lawyers can advise you on advance care planning and help you draw up the necessary documentation.
Read More → How is a power of attorney different from a personal directive in Alberta?
What is advance care planning?
While nobody likes to consider a time when they are no longer in control of making important decisions, one effect of people living longer in Alberta is that more people suffer the loss of mental capacity during their lives.
Without addressing advance care planning, it can become challenging for your family to make important decisions about your health and finances without major delays, if you should become incapacitated in the future.
The law in Alberta does not allow another person to automatically make such decisions on your behalf. In the absence of the right documentation, family members will usually need to make an application to the court for a guardianship order.
Consider advance care planning as a way to ensure that you stay in control of healthcare decisions – by appointing a willing and able decision-maker that you know and trust rather than having someone else make decisions on your behalf.
While most people know that it is important to address such matters, many fail to take the steps before it is too late.
Advance care planning will ensure that you have the necessary documentation for your appointed decisions makers to:
- Make healthcare decisions in case of a sudden accident and incapacitation
- Make healthcare decisions in case of loss of capacity as you age
- Make decisions on your behalf based upon express wishes that you have communicated
- Make key financial decisions on your behalf
What are the main components of advance care planning?
The key components of long-term care planning are usually:
- A personal directive or “living will”
- An enduring power of attorney
These documents make provisions for when you are alive but nearing the end of your life or when you suffer a serious accident and are incapacitated.
When you are creating your advance care plan, it’s best to consult with your healthcare professionals and family, as well as your family lawyer, about what might be required in your plan. You may also want to include your wishes for the type of funeral you want.
Personal directives and enduring powers of attorney are covered in more detail below.
How does Enduring Power of Attorney help you plan for illness or injury?
One of the most important documents you will create for your long-term care planning strategy is an Enduring Power of Attorney.
This provides authorization for a nominated individual or individuals to make health and financial decisions on your behalf when you are no longer able to.
Note that the agreement must be written when you’re capable of making your own decisions or it will be too late.
This is one of the ways in which you can prepare for serious illness or injury.
Advance care planning if you have a lengthy illness
It is easier to plan ahead if you suffer a long illness rather than sudden incapacitation.
If you legally appoint someone to act on your behalf (your “agent”), they will be able to make medical decisions on your behalf if your condition deteriorates.
Sudden mental incapacitation can create severe difficulties for family members who do not have adequate authorization to act on your behalf.
The earlier you address this matter in your life, the less likelihood there is of problems and delays if something happens to you.
“Personal directive” is the term we give to a “living will” in Alberta. It can be created to allow another individual to make personal decisions on your behalf if you are unable to do so.
It usually covers matters such as where you would like to live, who you would like to live with, who will care for your children, as well as other personal matters relating to employment, education or recreation, as well as health matters.
The person or people you pick to be your “agent” or “agents” have legal authority to make these decisions for you either on a temporary or long-term basis, depending on the nature of your incapacitation.
What is NOT covered by advance care planning?
Advance care planning provides only for your health care needs and related financial matters while you are still alive.
It does not include division of assets (property, cash, investments, etc.). These matters are covered in a will, which becomes active when you pass away.
Upon death, all advance care planning measures become invalid and the provisions in your will take over.
If you create a personal directive or enduring power of attorney, talk to your lawyer about drawing up a will if you have not already done so.
Every estate planning document needs to be professionally drawn up by a lawyer so that it is legally enforceable and can serve its intended purpose.
To ensure that you have adequately prepared for whatever the future may hold, speak to one of the experienced estate planning lawyers at Vest Estate Lawyers in Calgary.