Decisions about medical care can become particularly important when a person is seriously ill or approaching the end of life. While many people have clear views about the treatment they would or would not want in those circumstances, they may not always be able to communicate those wishes when a decision must be made.
In Alberta, a personal directive can form an important part of planning for that possibility. A personal directive is a legal document that allows an adult to provide instructions about personal matters and appoint one or more people to make certain decisions if the adult later loses the capacity to make those decisions independently. Those instructions can include wishes relating to medical treatment and end-of-life care.
What Is a Personal Directive in Alberta?
A personal directive is designed to address decisions that may need to be made while a person is alive but unable to make certain personal decisions because of illness, injury, or another cause of incapacity.
The person who creates the personal directive is known as the maker. The maker may appoint an individual, known as an agent, to make personal decisions on their behalf. A personal directive can address matters such as health care, accommodation, who the maker lives or associates with, and other personal matters.
Unlike a will, which generally deals with a person’s estate after death, a personal directive operates during the maker’s lifetime. It is also distinct from an enduring power of attorney, which is generally used to authorize another person to deal with financial and property matters.
Can a Personal Directive Address End-of-Life Care?
Yes. Alberta’s personal directive framework allows a maker to include instructions concerning medical treatments they would or would not want to receive. This can include instructions that may become relevant when a person is seriously ill, permanently incapacitated, or nearing the end of life.
Depending on the person’s circumstances and preferences, end-of-life instructions might address issues such as life-support measures, resuscitation, artificial nutrition or hydration, mechanical ventilation, or other forms of medical treatment. Advance care planning may also involve considering where a person would prefer to receive care and the values that should inform treatment decisions.
A personal directive can therefore provide a written record of a person’s preferences before a medical crisis occurs.
The Personal Directive Does Not Take Effect Immediately
Creating a personal directive does not transfer control over medical decisions to an agent right away. An adult who has capacity continues to make their own personal and health-care decisions. A personal directive only comes into effect when the required process determines that the maker lacks capacity to make the relevant personal decisions.
Capacity generally concerns whether a person can understand the information relevant to a decision and appreciate the reasonably foreseeable consequences of making or not making that decision. Importantly, disagreeing with another person’s decision does not, by itself, establish that the person lacks capacity.
What Role Does the Agent Play?
When a personal directive takes effect, the agent’s authority depends on the terms of the document. If the personal directive contains clear instructions that apply to a particular decision, Alberta’s framework requires the agent to follow those instructions. Where the directive does not provide clear instructions, the agent generally considers what the maker would have decided based on the agent’s knowledge of the maker’s wishes, beliefs, and values.
This makes communication important. A written document can provide guidance, but conversations with the chosen agent can provide additional context about the maker’s priorities, values, fears, and preferences.
For example, a person may have views not only about a particular treatment but also about independence, comfort, pain management, quality of life, family involvement, religious practices, or the circumstances in which they would consider certain medical interventions acceptable.
Personal Directives and Advance Care Planning
A personal directive can be one component of a broader advance care planning process. Advance care planning involves thinking about and communicating wishes for future health care. Alberta health resources encourage adults to consider issues such as who should make decisions if they lose capacity, what forms of life-sustaining treatment they might want, and what values should guide their care.
A personal directive provides the legal mechanism for appointing an agent and documenting instructions. Other conversations and health-care planning documents may address a person’s current medical circumstances and goals of care.
Because health conditions and treatment options can change over time, planning may involve both legal documentation and ongoing discussions with health-care providers and family members.
How Specific Should End-of-Life Instructions Be?
There is no single set of end-of-life instructions that will suit every person. Some individuals may have very specific wishes about particular forms of treatment, while others may prefer to describe broader principles that should guide their agent.
Specific instructions can provide clarity where a particular scenario has been anticipated. Broader statements about values may provide an agent with guidance when circumstances arise that could not reasonably have been predicted when the document was prepared.
Medical situations can also be complex. A particular treatment may be appropriate in one situation but carry very different implications in another. For this reason, discussions with health-care professionals may help individuals understand what particular medical treatments involve and how their preferences could apply in different circumstances.
Choosing an Agent for End-of-Life Decisions
Selecting an agent can be particularly significant where a personal directive includes health-care and end-of-life matters. Under Alberta’s framework, an agent may be entrusted with making decisions during periods when the maker is unable to communicate or decide independently. Alberta health resources suggest considering someone who is trusted, understands the maker’s wishes, and can make decisions in stressful circumstances.
A family relationship alone does not necessarily mean that a particular person must be selected. The intended agent should generally know that they have been named and understand the types of decisions they may eventually be asked to make.
Discussing end-of-life preferences in advance may also help reduce uncertainty if difficult medical decisions later arise.
What Happens Without a Personal Directive?
If an adult loses capacity without having an applicable decision-maker in place, Alberta law provides other mechanisms through which certain decisions may be made.
For example, in some circumstances, a health-care provider may select an eligible relative to make a specific decision concerning health care or temporary residential placement. More extensive or ongoing decision-making authority may involve other processes, including guardianship.
A person who prepares a personal directive has an opportunity to choose their own agent and document their wishes before incapacity occurs.
Reviewing End-of-Life Wishes Over Time
A personal directive does not necessarily have to remain unchanged for the rest of a person’s life. Preferences can evolve as relationships, health, family circumstances, religious beliefs, or views about medical treatment change. Alberta advance care planning resources encourage people to revisit their wishes as their health, goals, and values change.
Reviewing a personal directive may also be relevant after significant life events, such as marriage, separation, the death or incapacity of a chosen agent, a major diagnosis, or a move to another jurisdiction.
Keeping the document accessible is also important. Alberta recommends providing copies to the agent, doctor, and other key people. A personal directive can also be registered with the province’s Personal Directives Registry, although the registry records contact information rather than retaining a copy of the directive itself.
Personal Directives Can Give a Voice to Future Wishes
End-of-life care can involve deeply personal decisions about health, dignity, comfort, independence, and medical treatment. A personal directive provides one way for Albertans to document those wishes and identify who should make personal decisions if they can no longer do so themselves.
Considering these issues before a health crisis can also allow time for discussions with prospective agents, family members, health-care providers, and others who may ultimately be involved in a person’s care.
Planning an Alberta Personal Directive? Contact DBH Law in Calgary
A personal directive in Alberta can help document wishes about health care, medical treatment, incapacity, and end-of-life care, while identifying an agent who may make personal decisions if capacity is lost.
The wills and estates lawyers at DBH Law can assist clients with preparing and reviewing personal directives, enduring powers of attorney, wills, and estate planning documents. Whether you are creating an estate plan for the first time or updating existing documents following a change in your health, family, or personal circumstances, contact us online or call 403-252-9937 to discuss wills and estate planning in Alberta and the role a personal directive may play in your planning.