1. What Does Alberta Law Say?

2. What Is a Guardianship Order?

3. The Court Decides Who Will Be Appointed

4. The Application Process Can Take Time

5. A Personal Directive Helps Avoid Court Proceedings

6. A Personal Directive Is Different From an Enduring Power of Attorney

7. How the Process Works

8. Common Mistakes

9. Costs and Considerations

10. When Should You Speak With an Estate Planning Lawyer?

11. How Bridgestone Law Can Help

Introduction

A Personal Directive is one of the most important documents in an Alberta estate plan. It allows you to appoint someone you trust to make personal decisions on your behalf if you lose the mental capacity to make those decisions yourself. These decisions can include matters relating to healthcare, living arrangements, personal care, and other non-financial aspects of your life.

Many people assume that if they become incapable because of an illness, accident, or cognitive decline, their spouse or adult children will automatically be able to make medical and personal decisions for them. In Alberta, this is not always the case. Without a valid Personal Directive, your loved ones may need to apply to the Court under Alberta's Adult Guardianship and Trusteeship Act to be appointed as your guardian before they have the legal authority to make certain personal decisions on your behalf.

The guardianship process can be time-consuming, costly, and emotionally challenging, particularly during a medical emergency or a period of declining health. It may also result in delays when important decisions about your care, housing, or treatment need to be made. In addition, if family members disagree about who should act as your guardian, the Court, not you, will decide who is best suited to make those decisions.

Understanding what happens if you lose capacity without a Personal Directive, how guardianship applications work, and why advance planning is so important can help you maintain greater control over your future while reducing uncertainty and stress for the people who care about you.

What Does Alberta Law Say?

In Alberta, a Personal Directive allows you to appoint another person (known as your agent) to make personal, healthcare, and other non-financial decisions on your behalf if you lose the mental capacity to make those decisions yourself. It is an essential part of incapacity planning because it allows you to choose who will speak for you if you are no longer able to communicate or make informed decisions.

If you lose capacity without a Personal Directive, no one automatically has the legal authority to make all personal decisions on your behalf, even if they are your spouse, adult child, or closest relative.

Instead, someone may need to apply to the Court to become your guardian under Alberta's Adult Guardianship and Trusteeship Act.

What Is a Guardianship Order?

A guardianship order is a Court order that authorizes an individual to make personal decisions for an adult who no longer has the mental capacity to make those decisions independently.

Depending on the Court order, a guardian may be authorized to make decisions regarding:

• healthcare and medical treatment;

• living arrangements;

• personal care;

• educational or training opportunities;

• participation in social activities; and

• other personal matters affecting the adult's well-being.

A guardian must always act in the incapable adult's best interests and comply with the duties imposed by Alberta law.

The Court Decides Who Will Be Appointed

If no Personal Directive exists, the Court, not the incapable adult, determines who should be appointed as guardian.

Applicants may include:

• a spouse or adult interdependent partner;

• an adult child;

• another family member;

• a trusted friend; or

• in some circumstances, the Public Guardian.

If more than one person seeks the appointment, disagreements may arise, requiring the Court to determine who is best suited to act.

The Application Process Can Take Time

Obtaining a guardianship order generally requires:

• medical evidence regarding the adult's capacity;

• preparation of Court documents;

• service of required notices;

• compliance with the Adult Guardianship and Trusteeship Act;

• filing the application with the Court; and

• obtaining a Court order.

While the application is being processed, important decisions regarding healthcare or living arrangements may be delayed or become more complicated.

A Personal Directive Helps Avoid Court Proceedings

Preparing a Personal Directive while you still have capacity allows you to decide in advance who will make personal decisions for you if the need arises.

Because you appoint your own agent:

• you choose the person you trust;

• your family may avoid the expense and delay of a Court application;

• important healthcare decisions can often be made more efficiently;

• your personal wishes are more likely to be respected; and

• uncertainty during a medical crisis can be reduced.

For many Albertans, preparing a Personal Directive is one of the most effective ways to ensure that someone they trust can make decisions on their behalf if they become incapable.

A Personal Directive Is Different From an Enduring Power of Attorney

Although the documents are often prepared together, they serve different purposes.

Generally:

• a Personal Directive authorizes someone to make personal and healthcare decisions if you lose capacity; and

• an Enduring Power of Attorney authorizes someone to manage your financial and legal affairs.

A comprehensive incapacity plan will often include both documents, ensuring that trusted individuals can manage all aspects of your affairs if you are no longer able to do so yourself.

Because incapacity can occur unexpectedly through illness, injury, or age-related cognitive decline, preparing a Personal Directive before it is needed can provide clarity for your loved ones, reduce the need for court involvement, and help ensure your personal care reflects your wishes.

How the Process Works

Step 1: Capacity Is Lost

The process begins when an adult is no longer able to understand information necessary to make personal decisions or appreciate the consequences of those decisions.

Loss of capacity may result from:

• dementia or Alzheimer's disease;

• a stroke;

• a traumatic brain injury;

• a serious illness;

• another cognitive impairment; or

• an unexpected accident.

If there is no valid Personal Directive, family members may not automatically have the legal authority to make important personal decisions on the adult's behalf.

Step 2: A Family Member Applies for Guardianship

If personal decisions need to be made, an appropriate person may apply to the Court to become the adult's guardian under Alberta's Adult Guardianship and Trusteeship Act.

The proposed guardian is often:

• a spouse or adult interdependent partner;

• an adult child;

• another close family member;

• a trusted friend; or

• in some cases, the Public Guardian.

The applicant must demonstrate that a guardianship order is necessary and that they are suitable to make personal decisions in the adult's best interests.

Step 3: Medical Evidence Is Obtained

A guardianship application generally requires evidence regarding the adult's mental capacity.

This often includes:

• a formal capacity assessment;

• medical reports;

• physician opinions; or

• other evidence required under the legislation.

The Court relies on this information when deciding whether the adult is incapable of making personal decisions independently.

Step 4: The Court Reviews the Application

The Court considers the evidence and determines whether:

• the adult lacks capacity;

• a guardianship order is necessary;

• the proposed guardian is appropriate; and

• the requested powers are in the adult's best interests.

If family members disagree about who should be appointed, the Court will determine who is best suited to serve as guardian.

Step 5: The Guardian Begins Making Personal Decisions

Once appointed, the guardian has legal authority to make personal decisions within the scope of the Court order.

Depending on the order, the guardian may make decisions regarding:

• medical treatment;

• healthcare providers;

• living arrangements;

• personal care;

• educational opportunities;

• social activities; and

• other matters affecting the adult's well-being.

The guardian must always act in the incapable adult's best interests and comply with the obligations imposed by Alberta law.

Practical Examples

Example One: A Personal Directive Avoids Court

Margaret prepares a Personal Directive while she is healthy, appointing her son as her agent.

Several years later, she develops dementia and is no longer able to make informed healthcare decisions.

Because the Personal Directive is already in place, her son is able to make personal and medical decisions in accordance with her wishes without applying to the Court.

Example Two: No Personal Directive Exists

David suffers a severe brain injury in a motor vehicle accident.

Because he never prepared a Personal Directive, his wife must apply to the Court for a guardianship order before she has full legal authority to make certain decisions regarding his long-term care and living arrangements.

Although she is eventually appointed guardian, the Court process adds time, expense, and stress during an already difficult period.

Example Three: Family Members Disagree

Linda loses capacity without having prepared a Personal Directive.

Two of her adult children disagree about where she should live and who should make decisions about her medical care.

Because there is no Personal Directive identifying Linda's chosen decision-maker, the matter proceeds to Court, where a judge determines who should be appointed as guardian based on Linda's best interests.

Common Mistakes

Assuming Family Members Can Automatically Make Healthcare Decisions

One of the most common misconceptions is that a spouse or adult child automatically has the legal authority to make personal or healthcare decisions if you lose capacity.

In Alberta, this is not always the case.

Without a valid Personal Directive, your loved ones may need to obtain a guardianship order before they have the legal authority to make certain decisions regarding:

• healthcare;

• living arrangements;

• long-term care;

• personal support services; or

• other important personal matters.

Preparing a Personal Directive in advance can help avoid uncertainty during a medical crisis.

Waiting Until Capacity Has Declined

A Personal Directive must generally be signed while you still have the mental capacity to understand the nature and consequences of the document.

Many people delay preparing one until after receiving a diagnosis of dementia or another cognitive condition.

If capacity has already been lost, it is usually too late to create a valid Personal Directive, and a guardianship application may become necessary.

Choosing the Wrong Agent

Your agent should be someone you trust to make personal decisions in accordance with your wishes and values.

When selecting an agent, consider whether they are:

• trustworthy;

• able to make difficult decisions under pressure;

• familiar with your values and preferences;

• willing to communicate with healthcare providers; and

• prepared to accept the responsibility.

Choosing the right person can help ensure that important decisions are made in a manner consistent with your wishes.

Failing to Review the Personal Directive

A Personal Directive should be reviewed periodically to ensure it continues to reflect your circumstances.

It is often appropriate to review the document following:

• marriage or divorce;

• significant changes in family relationships;

• the death or incapacity of your chosen agent;

• major health changes; or

• changes in Alberta law.

Regular reviews help ensure the document remains current and effective.

Assuming an Enduring Power of Attorney Covers Healthcare Decisions

Many people mistakenly believe that an Enduring Power of Attorney authorizes someone to make medical decisions.

It does not.

An Enduring Power of Attorney generally applies to financial and legal matters, while a Personal Directive governs personal and healthcare decisions during your lifetime.

Preparing both documents helps ensure that trusted individuals can manage all aspects of your affairs if you lose capacity.

Costs and Considerations

Preparing a Personal Directive is generally much less expensive and less complicated than requiring loved ones to obtain a guardianship order after capacity has been lost.

If no Personal Directive exists, potential costs may include:

• legal fees;

• Court filing fees;

• medical capacity assessments;

• preparation of Court documents;

• service of required notices; and

• other expenses associated with a guardianship application.

Beyond the financial cost, families may experience delays and emotional stress while important healthcare and personal decisions remain subject to the Court process.

Preparing a Personal Directive as part of a comprehensive estate plan can often reduce these difficulties while allowing you to decide in advance who will speak on your behalf.

When Should You Speak With an Estate Planning Lawyer?

Professional legal advice may be particularly valuable if:

• you do not currently have a Personal Directive;

• you have recently married, divorced, or experienced another significant life change;

• you have been diagnosed with a condition that may affect future capacity;

• you wish to appoint more than one agent;

• you want to coordinate your Personal Directive with your Enduring Power of Attorney and will;

• you have questions about guardianship under the Adult Guardianship and Trusteeship Act; or

• you have not reviewed your estate planning documents in several years.

An experienced estate planning lawyer can prepare documents that reflect your wishes, explain your options, and help ensure your personal care decisions can be made by someone you trust if you ever lose capacity.

How Bridgestone Law Can Help

Losing mental capacity without a Personal Directive can leave your loved ones facing unnecessary uncertainty, delay, and legal expense. Instead of allowing someone you trust to make important personal and healthcare decisions immediately, your family may need to apply to the Court for a guardianship order before they have the necessary legal authority. Preparing a Personal Directive in advance allows you to choose who will make those decisions and helps ensure your wishes are respected during difficult circumstances.

Bridgestone Law assists individuals and families throughout Calgary and Alberta with Personal Directives, Enduring Powers of Attorney, wills, estate planning, and incapacity planning. Whether you are preparing your first estate plan or updating existing documents, our experienced estate planning lawyers can help you create a comprehensive plan that protects both your personal wishes and your family's future.