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What Is the Difference Between a Will, Power of Attorney and Personal Directive in Alberta

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A will, power of attorney, and a personal directive all give you the chance to clearly describe your wishes for your family, property and your own self in anticipation of the possibility of your incapacitation, or death. Completing these documents while you are able relieves your family and loved ones of the burden of trying to guess at what your wishes may have been.

In general terms, a will determines financial and personal matters after your death. A personal directive lays out your wishes in personal and legal matters in the event of your incapacitation. Power of attorney is the transfer of authority over your financial and legal matters to a designated person of your choice in the event of your incapacitation.

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What are Wills and its types

A will is a legal document that explains how you want your property to be distributed after your death. It also names a personal representative who will carry out your wishes, and names a guardian for any minor children.

There are two types of wills that are legal in Alberta. A formal will is entirely in writing and signed by you in the presence of two witnesses who also sign the document. A holograph will is a document entirely in your handwriting that is signed by you. It is recommended that a will be made with the assistance of a qualified legal professional who can assist in its preparation, ensure that the proper procedures are followed, and that the document is legal and binding.

It is important to review and update your will when major life events happen such as marriage, death, and the acquisition of property. An out-of-date will can complicate matters when the circumstances under which the will was made change. Making sure that your will accurately reflects your wishes is an active process as your life progresses.

If you die without a will, the Wills and Succession Act lays out how and to whom your estate will be transferred.

What do Personal Directives mean in Alberta?

These are known as 'living wills' in other jurisdictions. They enable an agent or agents that you designate, to have the legal authority to make personal decisions on your behalf at a time when you are alive, but incapacitated. Personal directives can be temporary or long-term. They are written before you become incapacitated and are voluntary, optional documents.

In it, you name an agent, which is a person or people you've designated, to make decisions and carry out your personal directive. It is their job to ensure that it is followed. Times of injury or illness are likely scenarios in which you may be determined to not to have the ability to make personal decisions.

You are allowed to name more than one person as your agent and can name different areas over which each of the agents will have responsibility. For example, one may be designated to oversee your healthcare, and one to oversee childcare.

In order to determine capacity, a qualified professional will perform a capacity assessment. A capacity assessment may also be done by a person designated by the individual in their personal directive, along with another person who must be either a physician or a psychologist. A determination that you are unable to make personal decisions is not necessarily permanent. If the individual recovers or is determined to be able to make decisions again, they may have another capacity assessment performed.

Personal directives govern personal decisions related to anything and everything that is not financial. They govern decisions to be made for you while alive. Broadly, they can cover:

  • Your choice of guardian for minor children
  • Where and with whom you would like to live
  • Medical treatments that you may or may not wish to receive
  • Choices about how you would like to live including your recreation, employment and education
  • All personal and legal decisions

Please note that a personal directive cannot instruct illegal activity.

There are a few steps to writing a personal directive. You can find more information on the Alberta Government's website including how to register your personal directive.

Power of Attorney

In the event you are in a position of illness or injury and are unable to make your own financial decisions, enduring power of attorney allows a person you trust to make them for you. Enduring power of attorney is defined by the Powers of Attorney Act.

A lawyer should prepare an enduring power of attorney agreement at a time you are fully capable of making your own decisions. The agreement can take effect at a time of your choosing but can also take effect at the moment you lose capacity.

Establishing an enduring power of attorney agreement while you have the capacity to choose removes the burden on your family and loved ones to establish trusteeship in the event you lose capacity. If you have an enduring power of attorney agreement, you do not need a trustee.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.

© 2020 Parveenk