Frequently Asked Questions

Why should I have a personal directive?

No one likes to imagine the possibility that an illness or injury could leave us unable to make decisions such as the medical treatment we will receive or where we will live, but it does happen.

If you are 18 years of age or older, you can gain greater control over your future personal matters by making a personal directive. Your family and friends will then feel confident that the decisions made on your behalf are what you want. Personal directives can ease stress in difficult times.

Relatives, including a spouse, do not automatically have a legal right to make personal decisions for you. Without a personal directive, a family member or friend will need to apply to the court to become your legal guardian. This can be a lengthy and expensive process, leaving you with no one to make decisions on your behalf until a Court Order is granted.

Effective June 30, 2008 the Office of the Public Guardian will be able to, as a last resort, act as the agent for an Albertan who is without someone to make decisions on their behalf.

What is included in a personal directive?

Instructions can be about any or all personal matters that are non-financial, such as medical treatment you would and would not like to receive and who you would like to care for your children if you are not capable of doing so.

A personal directive also lets you choose another person, an agent, to act on your behalf.

What is the difference between a personal directive and an Enduring Power of Attorney?

A personal directive is a legal document in which you can name a person you trust to make personal decisions on your behalf and/or provide written instructions to be followed should you be unable to make decisions for yourself. A personal directive deals with personal matters, such as where you live and the medical treatment you will receive.

Enduring Power of Attorney deals with financial matters. An Enduring Power of Attorney is a legal document in which a donor (the person who writes the power of attorney) appoints an attorney (the person authorized to make decisions on behalf of a donor). An Enduring Power of Attorney is a Power of Attorney that contains a clause stating that the authority of the attorney is in effect after a donor suffers a loss of capacity.

There are two types of Enduring Powers of Attorney:

  1. It takes effect immediately and specifically states that it is to continue even if the donor becomes mentally disabled.
  2. It takes effect when the donor becomes mentally disabled or some other specified event occurs (this is often called a "Springing Power of Attorney").

An Enduring Power of Attorney must:

  • Be in writing and dated,
  • Be signed by the donor in the presence of a witness,
  • Be signed by the witness in the presence of the donor, and
  • Contain the following statements;

(a) it is to continue notwithstanding any mental incapacity or infirmity of the donor that occurs after the execution of the Power of Attorney, or
(b) it is to take effect on the mental incapacity or infirmity of the donor.

More information is available on the Alberta Justice website at www.justice.gov.ab.ca

What changes did you make?

Changes under the Personal Directives Amendment Act take effect on June 30, 2008 and include:

  • a new voluntary standardized personal directives form to make it easier for Albertans to write their personal directive;
  • the Public Guardian can be named as sole agent, to allow Albertans who do not have anyone to represent them to name a decision maker;
  • a personal directives online registry will be set up and can be used voluntarily and free of charge to allow approved health care providers to contact the agents quickly when a maker has lost capacity;
  • personal directives (or their equivalent) written outside of Alberta are now recognized as being valid as long as they meet the criteria in Alberta;
  • new processes to complete a declaration of incapacity by physicians, psychologists and people named in the directive to assess capacity;
  • a maker, agent or a service provider can request a reassessment when mental capacity appears to have been regained;
  • the Public Guardian is now authorized to investigate complaints about agents who fail to act in accordance with the legislation: when the action of the agent is likely to cause physical or mental harm to the maker; and
  • parents of minor children are able to specify an agent to make decisions about the care and education of their children until a guardian is appointed.

The Alberta government is responding to what it heard from Albertans during its review of both the Personal Directives Act and the Dependent Adults Act.

If I already have a personal directive do I need to rewrite it?

No. A personal directive must always meet legal requirements to be valid. For example, it must be dated, signed by the maker, and witnessed by someone else.

How is writing a personal directive now easier for Albertans?

Albertans will now have the option of completing a form or using it as a guide when they write their personal directive.

Albertans told us they want to know that they are completing the document correctly and including the appropriate information. The voluntary form addresses this need. Service providers will also find it easier to recognize personal directive written in Alberta or elsewhere if a standard form id available.

Completing the form is optional. Albertans wanted the form to be voluntary so they could still write a personal directive in their own individual style or at the kitchen table when they felt motivated.

A personal directive must always meet legal requirements to be valid. For example, it must be dated, signed by the maker, and witnessed by someone else.

Are directives using documents from other provinces recognized in Alberta?

Yes, we heard many times in the consultation that Alberta is the second most popular place for seniors to move to when they retire, often to be close to their children who have moved here for work because of our growing economy. These seniors do not want to redo their documents. If a document meets the criteria to be considered a personal directive - dated, written, signed and witnessed - it will have the same legal effect as if it was written in Alberta as a personal directive.

What is the personal directives registry?

The online registry will make it easier for health care providers to find out, at any time of day, whether a patient who no longer has mental capacity has a personal directive so that the designated agent(s) may be contacted swiftly.

The personal directives registry is on a secure, Government of Alberta website and is administered by the Office of the Public Guardian.

Registering your personal directive is easy, free and it's your choice – registration is optional in Alberta. If you choose to register your personal directive, you will be asked to provide needed personal information, including:

  • Date you wrote the personal directive;
  • Contact information for your agent(s);
  • Your contact information; and
  • If you have more than one agent, their order of priority.

The registry does not keep a copy of your personal directive. Albertans will need to continue to provide copies of personal directives to health care providers and agents will need to continue to bring the directive to health care professionals to verify content.
The personal directives registry will be established in two phases. Starting on June 30, Albertans will be able register their personal directives. In the fall of 2008 health care providers will be able to search the registry.

How do you register your personal directive if you don't use a computer?

You can register your personal directive by completing a registration form. For information about this registration method, call the Office of the Public Guardian toll-free at 1-877-427-4525 or you can visit one of our eight regional offices.

How will personal information included in the registry be kept confidential?

The Alberta government recognizes the personal directives registry will include personal information about you and your agent(s), that it why it is important to protect it from being accessed by people who are not authorized to view the information.

Anyone who uses the personal directives registry must identify themselves first by using their Alberta Secure Access Service login. Their account will only provide access to information that they are authorized to view.

The information provided to the registry is confidential and follows the rules outlined in the Freedom of Information and Protection of Privacy Act and the Health Information Act.

Searches in the registry are restricted to approved health care providers only; this includes hospital staff, doctors and long-term care staff. The Office of the Public Guardian will enter into agreements with health authorities, physicians and long-term care facilities who wish to gain access to the registry.

The authority to search the registry is limited to the purpose of the registry and can only be made if the writer of the personal directive is in the care of the health care providers who want to search the registry.

Agreements between the Office of the Public Guardian and service providers will address issues of privacy, security, use and disclosure of registry information and the development of internal policies to monitor access.

Will health care providers who aren't providing services to me be able to look up my information?

Health care providers are permitted to search the registry if a patient is in their care.

Will doctors and other health care providers be required to check the registry to see if someone has a personal directive?

Registering a personal directive is voluntary and health care providers are encouraged to check the registry when possible but checking the registry is not mandatory. We strongly recommend that you provide a copy of your directive to your agent, your physician and other health care providers.

Will health care providers be able to search the registry on June 30th 2008?

No, on June 30th, the registry will allow Albertans to register. In the fall of 2008 health care providers will be able to search the registry.

Why did you give the Office of the Public Guardian the authority to investigate complaints?

We are responding to what we heard from Albertans during our review. Until now, any complaints about the actions of agents had to be brought forward through a Court application to the Queen's Bench, which was seen as cumbersome and expensive.

The vast majority of agents are acting in the best interest of the people they represent. However, some agents may not be familiar with the expectations of their role as agent, or may not realize that their action is causing harm to the maker. In that case the Public Guardian would provide information and support to the agent so that they are better able to carry out their duties. When the actions of an agent results in physical or mental harm to the incapable maker and the agent is not willing or able to change, an application could be made to Court to remove the agent.

If an agent is not acting appropriately, how do you make a complaint to the Office of the Public Guardian?

Complaints must be made, in writing, to the Office of the Public Guardian.

Any interested party can send a written complaint about the agent to the Office of the Public Guardian. Starting on June 30, you will be able to download the form from www.seniors.gov.ab.ca/opg or obtain a copy by calling 1-877-427-4525 toll-free.

All complaints will be reviewed and an investigation will be conducted if there is an indication that an agent is not following instructions of a personal directive or complying with the duties of an agent, and there is either physical or mental harm to the writer of the personal directive (maker) as a result. The investigation can include interviews and accessing relevant records.

If the investigation shows the complaint has merit, the Office of the Public Guardian may try to resolve the matter, make a referral to an alternative dispute resolution process or apply to the Court for one or more orders including the revoking of an agent's authority.

What if an agent is wrongly accused of action and a complaint is filed with the Office of the Public Guardian?

Only complaints involving an agent failing to comply with the personal directive or the duties of an agent and it causing physical or mental harm to the writer of the directive (maker) will be investigated. If a complaint warrants an investigation, the Office of the Public Guardian will formally notify the agent and provide the agent with the opportunity to present his or her side of the situation.

If, at the end of the investigation, the complaint has been found to have merit, the Office of the Public Guardian has a number of options. The Office can try to resolve the situation (i.e. further education and training of agent on their role), refer for alternate dispute resolution or make a timely application to Court for review. The Court can look at the matter independently and could remove the agent. The Office of the Public Guardian has no authority to revoke an agent's authority. The amendments are written with the approach that the maker chose this trusted person to act on their behalf and the focus of the investigation is on protecting the maker by resolving the issue that gave rise to the concern rather than on punishment or removing the agent.

The Office of the Public Guardian has had a role for over 30 years in investigating similar sensitive matters under the Dependent Adults Act when asked by the Courts. It is a role the Office takes very seriously.

Who assesses whether an individual has capacity to make decisions?

Two people are required to complete an assessment of capacity, one of which must be a physician or psychologist. Makers can also name a person they trust to assess their capacity in consultation with a physician or psychologist. The forms that must be completed are in the regulations to the Personal Directives Act. The second alternative is for two service providers, one of whom is must be a physician or psychologist to assess capacity.

What changes have you made to the capacity assessment model?

The capacity assessment process has been enhanced to provide a more standardized approach and to ensure that any medical conditions that may cause temporary incapacity are ruled out.

What is the process for reassessing capacity?

Sometimes people recover from brain injuries or illness and regain complete or partial capacity to make decisions. The maker, agent or a service provider may each request a reassessment. When the agent and the service provider are in agreement that capacity has been regained they can sign a regaining capacity form which will be enacted on June 30, 2008. When the agent and the service provider disagree among themselves about the maker's mental capacity to make decisions they must refer the maker for an in depth assessment by two service providers and the decision as a result of that assessment is binding.