You can appoint an Agent to make personal decisions on your behalf. You can appoint one person (for example, your spouse) or more than one person (for example, your children) to so act. It is wise to appoint an alternate Agent or Agents to act, should your first named Agent die, or for any reason be unable or unwilling to carry out their duties as your Agent. You can also specify that an Agent is to act for a specified period of time, and then shall be replaced upon a specified event. For example, you can state that you wish your brother to be your Agent, until your daughter reaches the age of 18 and is willing and able to act, at which point in time, the appointment of your daughter shall come into effect.

A personal directive does not have to contain an Agent appointment and can simply set forth your wishes regarding personal decisions; however, most people do use the personal directive to choose who will be acting as their Agent. The Agent must be 18 years of age when called upon to act and must have the mental capacity required to make decisions on your behalf. The person you appoint should be someone you trust to make health care and personal decisions based on what they know you would have wanted, and to make those decisions in your best interests. This might be your spouse, adult interdependent partner (common law spouse), adult children, family member or trusted friend.

You do not have to choose the same person to be both your Agent under your Personal Directive and your Attorney under your Enduring Power of Attorney. In some instances, it can be preferable to have a different person for each role. If you appoint more than one Agent, you can specify that they are to make decisions jointly, you can state whose decision is to have precedence if they cannot reach a consensus, you can specify a means by which disputes between Agents are resolved, or you can state that they each have separate areas of authority.

Open discussion with your Agent is essential. You cannot specify within the Personal Directive all the possible decisions which your Agent may face in connection with your care. It is important to discuss with your Agent your wishes in advance so they will be able to carry out their duties in the way you would have wanted. It is also crucial to ensure in advance that your Agent is willing to assume this time-consuming and significant responsibility.

If for any reason you lose mental capacity, and do not have an Enduring Power of Attorney in place, it will likely be necessary for an interested person to apply to the Court of Queen’s Bench to be appointed as your Trustee. Depending on how your financial affairs are set up, mental incapacity can make it impossible for your family to deal with even simple routine matters such as paying your utility accounts and credit card bills, renewing your investments, and renegotiating your mortgage. Issues regarding mortgage and loan renewals will arise even if title to your home and your bank accounts are jointly held with your spouse. The Enduring Power of Attorney is a far more convenient and cost-effective way of ensuring that there is someone acting on your behalf and taking care of your affairs should the need arise.

An Enduring Power of Attorney avoids various disadvantages of the court trusteeship appointment which would otherwise be necessary. For example:

• You have the ability to choose whom you wish to have act as Attorney, whether it be a family member or a trusted friend. The persons who have priority under law to apply to be your trustee pursuant to a Court order may not be the persons whom you want dealing with your financial affairs. The Enduring Power of Attorney allows you to maintain a greater deal of control over your property matters.
• The procedure is far quicker than the obtaining of a Court Order. The Attorney’s powers come into effect as soon as the requirements set forth in the EPA are met, (for example, as soon as a physician’s declaration of incapacity is obtained).
• The cost and trouble of requisite Court applications can be avoided. A court appointed trustee generally must return to Court on an on-going periodic basis to have his or her accounting records approved, and to have his or her appointment renewed. The frequency of these required applications is determined by the Court. These reviews are inconvenient and costly, and often prove to be a nuisance and an invasion into the privacy of family financial matters.

With an Enduring Power of Attorney, there is no requirement that the Attorney make periodic accountings to the Court. However, with a Power of Attorney you do retain the protection that the Attorney must provide to the Court a proper accounting of the affairs handled by him or her, upon application by you or any interested person, if a question is ever raised as to whether the Attorney has acted properly. The Attorney must therefore at all times maintain complete and proper accounting records in respect of the affairs handled by the Attorney on behalf of the Donor.

Directions regarding personal decisions

Your Agent must follow any clear instructions that you provide in your Personal Directive that are relevant to the personal decision to be made. If your Personal Directive does not contain clear instructions that are relevant to the decision to be made, your Agent must make the decision that your Agent believes you would have made in the circumstances, based on your Agent’s knowledge of your wishes, beliefs and values.

You can use the Personal Directive to give general and specific directions as to how you would wish personal decisions to be made on your behalf. These sorts of decisions may involve urgent, critical health care issues, such as whether or not you are to be kept on life support, and long term decisions, such as whether you wish to be cared for at home, finances permitting, or in an institutional setting. You can also specify which types of treatments you wish or do not wish to be given. A Personal Directive cannot direct that an illegal procedure such as assisted suicide or euthanasia be used.

Legal requirements

To give legal effect to your wishes you must execute a Personal Directive which complies with the legislation. It must be: (a) made after December 1, 1997, (b) in writing, (c) dated, and (d) signed by you at the end of the document in the presence of a witness. The witness may not be your spouse, your Agent or your Agent’s spouse. Spouse includes adult interdependent partners (i.e. common law spouses).

Guardianship of minor children

You may use the Personal Directive to set forth your wishes as to whom you would like to have act as temporary guardian for your minor children in the event you are unable to do so due to mental incapacity. This guardian may, but does not need to be, the same person as your Agent.

Organ donation

Many people use their Personal Directive to state or reiterate their consent regarding tissue and organ donation.

The legislation governing personal directives allows you to designate someone who is to make the determination as to your mental capacity after consulting with a physician or psychologist. Should you not make such designation, or should that person not be available to do so, then two healthcare “service providers”, one of whom is a physician or psychologist, are to certify your incapacity.

The authority of your Agent is strictly limited to only those matters in respect of which you have lost mental capacity. If your condition improves so that you regain the ability to make some or all of your personal care decisions, the authority of your Agent ceases in connection with such matters.