Estate Planning: Personal Directive

What is a personal directive?

A Personal Directive is a written document that will allow another person to make decisions concerning your personal care while you are still alive, but at a time when you are unable to do so yourself.  A Personal Directive goes beyond giving directions for medical care and can even go so far as where a person lives, who he/she associates with, etc.  This document is different from a will since does not depend on a person’s death to come into effect and it does not deal with property.

When does a personal directive come into effect?

A Personal Directive comes into effect upon the written declaration of two medical practitioners, indicating that you are not able to make your own decisions concerning your personal care and well being.

What if I do not have a personal directive?

If a person does not have a Personal Directive and it becomes necessary for someone else to step in and make financial decisions for him/her, a Court application must be made trustee pursuant to the Dependant Adults Act to be appointed as a Guardian. The Dependant Adults Act requires that specific forms be completed, filed and served upon particular parties.  The matter will then be heard by a Judge who will determine if a Guardian is needed and whether the applicant is suitable for that position.  Often, such an application involved considerable time and expense during a period when the family can least afford either.

In contrast, if a Personal Directive exists, it can come into effect immediately upon the written confirmation of 2 medical practitioners confirming that the person no longer has the ability to make decisions for his own personal care and well being.  The person named in the Personal Directive will then have the immediate ability to make such decisions, without any necessity of Court application.

Practical guidelines when making a personal directive

  1. Decide whom you would like to appoint as your agent. It is important to ask the person whether he/she is agreeable to being your attorney before naming him/her in your Personal Directive.  Usually, the first choice is your spouse.
  2. Decide on an alternate agent in case your first choice is unable or unwilling to act when the time comes.
  3. Ensure that the agent you choose live in the same province as yourself and are fairly familiar with your wishes and desires in terms of medical and personal care.  This is more for practical convenience than anything else.  The attorney should be close by so as to enable him/her to step in quickly.  In addition, he/she should have a good understanding of your wishes in order to make the best decisions possible for you.
  4. Indicate any particular issues of personal care that you have decided upon in advance.  This will make the agent’s job much easier since he/she will not need to “guess” as to what you may or may not want.  For instance, some people indicate that if they are in a persistent vegetative state, they do not want the aid of any artificial life sustaining mechanisms.  However, they would like to be kept free from pain.  This is simply one common example of the types of direction you may want to consider in your Personal Directive.
  5. Choose a lawyer you are comfortable with to prepare your Personal Directive.

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