When Does a Personal Directive Take Effect in Alberta?

If someone you love has named you as their agent in a personal directive, the hardest question is often when your role actually begins. A directive sits quietly in a drawer until the person can no longer make their own decisions, and then people need to know who says that point has been reached.

This article explains how incapacity is confirmed for a personal directive in Alberta, what the declaration involves, and what to expect afterward. It is general information, not advice on your situation, and a lawyer can confirm how it applies to your document.

This article covers the law of Alberta.

Capacity comes first, and it is presumed

Under the Adult Guardianship and Trusteeship Act, capacity for a decision means the ability to understand the information relevant to the decision and to appreciate the reasonably foreseeable consequences of the decision or of not deciding. The same Act presumes an adult has capacity to make decisions until the contrary is determined.

That presumption matters for agents and families. A person who makes a choice you think is unwise has not necessarily lost capacity. Disagreeing with a decision does not by itself mean the person lacks capacity. The question is whether they understand the facts to consider and what could happen with each option.

Who decides that the maker lacks capacity

A personal directive can name someone to decide whether the maker has become incapable. If the directive names a person or body to make that call and that person is available, the directive's own wording is where you start. Where no capacity determiner is named or available, the Personal Directives Act, s 9(2)(b), says incapacity is confirmed when 2 service providers make a written declaration, and at least one of them must be a physician or psychologist.

No court is involved in this step. That is a key difference from guardianship, where a judge decides whether the adult lacks capacity and whether an order is in the adult's best interests.

What the declaration process involves

The Alberta government page says a Declaration of Incapacity form is used for this purpose. The declaration is in writing, so a verbal opinion from a doctor is not enough on its own.

If the maker later recovers, the directive process has a way back. Regained capacity needs a Determination of Regained Capacity form. This means a declaration is not necessarily permanent, and an agent should keep track of whether the maker's condition changes.

• Ask whether the directive names who decides incapacity, and whether that person is available.
• If not, you will need 2 service providers to make the written declaration, with at least one a physician or psychologist.
• Make sure the correct form is used and keep a copy with the directive.
• If the maker's abilities improve, ask about the Determination of Regained Capacity form.

What happens once the directive applies

Once incapacity is confirmed, the agent acts on the matters the directive covers. The exact scope depends on the wording of the document, so read it closely and ask a lawyer if anything is unclear. Keep the maker's stated wishes in front of you.

A personal directive also limits what others can do. The Court may not give a guardian authority that an agent can exercise under a personal directive unless the agent's authority is terminated. Where a directive has clear and relevant instructions, a guardian must follow them.

Without a personal directive, the adult does not choose who decides. A healthcare provider may choose the nearest relative to decide on health care and temporary residential placement, and otherwise a family member or friend may have to apply to court to become guardian.

Registry, oversight and concerns

Registering a personal directive in the Personal Directives Registry is optional and free, and the directive is valid without it. The registry holds only contact information, not a copy of the directive, and you should not submit the directive to the court or the OPGT. The OPGT keeps the registry.

If a directive is in effect and you have concerns about how an agent is acting, any interested person may complain to the Public Guardian. The OPGT investigates written complaints about personal directive agents that meet its criteria.

What to do next

• Find the signed directive and read who is named as agent and who, if anyone, decides incapacity.
• Ask the maker's doctor or another service provider whether a written declaration is appropriate, rather than assuming capacity has been lost.
• Use the Declaration of Incapacity form when a declaration is needed.
• Keep copies of the declaration and any later Determination of Regained Capacity.
• Consider registering contact information in the Personal Directives Registry.
• Speak with a lawyer if family members disagree, the wording is unclear, or you are unsure whether the directive covers a decision.

Frequently asked questions