A will appoints one or more executors, now commonly called personal representatives, who will distribute the property forming part of your estate as you direct, upon your death. It also allows you to appoint guardians to care for your minor children after your death. This document is revoked automatically if you get married (but not if you get divorced); otherwise, it may only be revoked by you. Those you appoint as personal representatives do not have any power to administer your estate until you die. Without a will, your estate will be distributed in accordance with the legislation in effect at the time of your death. You should review your will every few years and any time your family status changes.
Your Enduring Power of Attorney
An enduring power of attorney (EPA) allows you to appoint one or more attorneys who can stand in your place to deal with your financial matters, including real estate and investments. An EPA can be designed to take effect immediately or only when it has been determined that you no longer have the mental capacity to manage your financial affairs (for example, in cases of coma, dementia, Alzheimer’s disease, or other mental disability). The determination of mental capacity can be made by your family doctor, by the unanimous opinion of two medical doctors, or in some other fashion if you desire. The attorney can be your spouse, with your children as alternate or co-attorneys, or anyone else living in the province whom you trust to act in your best interests. Under the legislation, an attorney does not need to be in Alberta, although it’s easier.
Your Personal Directive
A personal directive (PD) allows you to appoint one or more agents who will make decisions on your behalf concerning any personal matters, including your health care or your placement in a long-term care facility, in the event that you are incapable of making decisions yourself. Personal decisions include giving consent, refusing to give consent, or withdrawing consent for any personal matter that is non-financial, including some of the following:
- health care
- with whom you may live or associate
- participation in social, educational, and employment activity
- any other matter that is included in the regulations
When it comes to health care, a PD (which is similar to what was formerly known as a living will) will provide direction to your agent(s) in circumstances under which decisions about the above matters must be made. When considering making a PD, we suggest that you consult with your family doctor to discuss the medical strategies and procedures that may be relevant to you.
The purpose of wills, EPAs, and PDs is to have your wishes carried out with clear instructions so as to prevent a legacy of unnecessary family tensions. Feelings of guilt may prevent a loved one from acting on the basis of the patient’s wishes and best interests, especially with regard to the withdrawal of life support. Having these documents in place also puts your appointed decision makers at ease, knowing that they will be making decisions with the benefit of your forethought and guidance in a situation in which you may no longer be able to directly communicate your instructions.