At the start of a new year, many people make resolutions to improve their lives and check off long-ignored items from their ‘to-do’ lists. If you haven’t yet made an estate plan or if it has been a while since you last reviewed and updated your plan, now is an excellent time to do so. While making or updating your will to manage your assets after death is a key step in the estate planning process, it is equally important to plan for the potential that you could become incapacitated during your lifetime, requiring someone else to step in and make decisions on your behalf. In that respect, you should consider designing and executing both a personal directive and an enduring power of attorney. Below, we will review the features of these important documents, as well as their key differences, so you can understand the important role each plays in a comprehensive estate plan.
Personal directives and enduring powers of attorney are both tools that allow a person to take control over who will make important decisions in their life, should they become temporarily or permanently unable to do so for themselves.
What is a “Personal Directive”?
A personal directive is a document that enables a person to appoint others to make decisions on their behalf pertaining to medical and personal decisions, should they be unable to do so for themselves. Personal directives can cover a wide array of issues and can specify the scope of the appointed agent’s decision-making ability. Issues covered in a personal directive may include:
- Preferences with respect to medical treatment, including treatments you wish not to receive;
- Preferences with respect to your living arrangements;
- Guardianship appointment for minor children; and
- Any other wishes relating to your personal and legal decisions, such as recreational, educational, or employment decisions.
Personal directives not only allow you to choose the person, or persons, who will make critical decisions for you if necessary as well as indicate your own preferences in advance, they can also help avoid unnecessary delays in care down the road. Without a personal directive, disagreements could arise over who should make these decisions, which could result in litigation between various parties seeking to be appointed as your decision-maker. In this case, any decisions needing to be made could be put on hold until a court decides who should have the requisite authority.
MAID (Medical Assistance in Dying) and Personal Directives
While medical decisions and preferences can be specified in a personal directive, MAID, or medical assistance in dying, is not something that a person is able to pre-plan for at this time. In order to qualify for MAID, a person must be in an advanced state of irreversible decline at the time of the request, and they must be able to give informed consent, meaning they cannot give directions regarding MAID in advance.
Registering a Personal Directive
A personal directive is of little help if people are not aware of its existence. While it is important to advise any agents you’ve appointed and provide them with copies of the directive, Albertans may also register their personal directives so they can be located by medical professionals if the circumstances call for it. The provincial Office of the Public Guardian and Trustee provides a process through which residents may register their directive in an online directory, which can be searched by physicians in the event a patient becomes incapacitated. This will enable your treating doctor to quickly find out if you have a personal directive, as well as provide them with a means to contact your appointed agent(s) so there are no unnecessary delays in treatment.
What is an “Enduring Power of Attorney”?
While a personal directive allows someone to appoint an agent to make medical and personal decisions, an enduring power of attorney applies to financial matters. If you become incapacitated, it’s important to have someone ready to act on your behalf to take care of immediate financial issues, such as making mortgage or bill payments, managing real estate transactions, and handling other pressing matters such as investments. An enduring power of attorney will enable a trusted appointee to access your accounts and make financial decisions on your behalf while you are unable to do so.
You can determine when an enduring power of attorney will take effect. It might be as of the day the paperwork is signed, or it could be triggered by a future event. Like a personal directive, creating this document in advance allows you to choose who you trust to manage your finances, instead of leaving it up to a court. An enduring power of attorney will remain in place until your passing, or until you recover sufficiently to resume making your own decisions.
For Comprehensive Estate Planning Solutions, Contact the Calgary Estate Lawyers at DBH Law
Both personal directives and enduring powers of attorney are key elements of a complete estate plan, in addition to a will. The issues they cover are some of the most personal and significant decisions a person can make in their lifetime, and it’s important to appoint people you trust to reflect your wishes and act in your best interests.
The experienced estate planning lawyers at DBH Law provide responsive and concise legal advice in a personal, professional, and friendly manner. We help clients design and execute custom-tailored personal directives and enduring powers of attorney that address their unique needs, as well as provide experienced representation in related estate litigation matters when necessary. Please contact us to talk about how we can help you. We can be reached online or by phone at 403.252.9937.