When a Personal Directive Takes Effect in Alberta and Who Decides

A personal directive lets an adult plan for the day they can no longer make personal decisions. If you are named as agent, or you are a family member, the key question is when the directive actually starts to apply and who says so.

This article explains how incapacity is confirmed under Alberta's Personal Directives Act, what happens if the directive names no one, and where to go with concerns.

This article covers the law of Alberta.

Who decides that the adult is incapable

A directive can name a person to decide whether the adult has lost capacity. Read the document closely to see what it says.

Confirming incapacity under a personal directive does not involve a court. This is different from guardianship, which is a court process.

When the directive names no one

Under Personal Directives Act s 9(2)(b), where no capacity determiner is named or available, incapacity is confirmed when 2 service providers make a written declaration, and at least one must be a physician or psychologist.

The Alberta page says a Declaration of Incapacity form is used. Keep a copy with the directive, because an agent may be asked to show that the directive is in effect.

If the adult regains capacity

Incapacity is not always permanent. If the adult regains capacity, the Alberta page says a Determination of Regained Capacity form is needed.

Related documents and what happens without a directive

• Registration of a directive with the Personal Directives Registry is optional and free, and the directive is valid without it. The registry holds only contact information, not a copy.
• Do not submit the directive to the court or the OPGT.
• If a directive is in effect, any interested person may complain to the Public Guardian under Personal Directives Act s 24.2.
• An enduring power of attorney, which deals with finances, has its own rule. If no one is named to decide, incapacity is established when 2 medical practitioners declare in writing that the contingency has occurred, and if the document names who must declare, the document governs.

With no 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.

If a guardian is later appointed, the Court may not give the guardian authority that an agent can exercise under a directive unless the agent's authority is terminated. A guardian must follow clear and relevant instructions in a directive.

What to do next

• Find the signed directive and read who it names as agent and whether it names anyone to decide on incapacity.
• Ask the adult's doctor or another service provider about the adult's current condition.
• If the directive names no one, ask whether two service providers, including a physician or psychologist, can complete the written declaration.
• Keep the completed form with the directive and share it with the adult's care providers.
• Speak with a lawyer if family members disagree or the directive is unclear.

Frequently asked questions