When preparing your last will and testament, it may be prudent to also plan for a potential disability that may leave you unable to deal with your everyday affairs.
Examples may include a degenerative illness, an accident that causes a coma or permanent brain injury, or any incident that causes mental disability.
Without an enduring power of attorney and personal directive your loved ones may be forced to apply to obtain an order of trusteeship or guardianship under the Dependent Adults Act, which can be time consuming and expensive.
In Alberta, the Powers of Attorney Act and the Personal Directives Act allow for you to appoint a trusted individual to deal with your financial and non-financial affairs if such an unfortunate circumstance arises.
Enduring Powers of Attorney
An Enduring Power of Attorney, or EPA, allows you to choose a person, or persons, to look after your legal and financial affairs if you become incapable of doing so.
There are two types of EPA’s: springing and immediate. A springing EPA comes into effect when a specific time or event takes place, for example when you reach a certain age, or when it can be determined you have lost the capacity to make your own decisions.
You may name an individual who will determine when this has taken place, that is your family doctor.
An Immediate EPA is effective as soon as it is signed, and if you still have the capacity to make decisions both you and your attorney retain signing authority.
The requirements for a valid EPA are set out in the Powers of Attorney Act which includes things such as the requirement that the document be in writing, and outlines who may and may not witness the document being signed.
An important aspect of an EPA is that you must have the mental capacity to understand the nature and effect of the document at the time it is created. This is important insofar as you cannot wait until your mental capacity has diminished to create an EPA, it must be done with the intention of planning for the possibility of such a circumstance.
Personal Directives
A Personal Directive, or PD, acts in much the same way as an EPA, except that you are authorizing a person, or persons, to make non-financial decisions if you are ever to lose the capacity to be able to do so.
This includes decisions on medical treatments and healthcare, where you will live, whom you will reside and associate with, and your potential participation in social, educational and employment activities.
Again, the requirements for setting up a valid PD are set out in the Personal Directives Act.
Also included in this Act is the requirement that your representative follow the clear instructions set out in your PD, and make decisions based on your wishes, beliefs, values and best interests.
If at any time prior to losing your capacity you wish to terminate an EPA or PD you may do so in writing.
The purpose of creating these documents is to give you the peace of mind that if something were to happen to you, the correct people are in place to handle your affairs for you, and to ensure that decisions will be made in accordance with your wishes and in your best interests.
It is always advisable to discuss your wishes and intentions with your named representatives so that they are aware of what you want and what is expected of them prior to having the documents drafted.
Legally Speaking appears every second week in LIFE. It is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by David Brant, of the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Brant can be reached at 343-0812 or at www.reddeeraltalaw.com