Making plans in case something happens to you unexpectedly or you die is not just for older adults.
You’re turning 18. It’s time to celebrate! But it’s also time to face the responsibilities of adulthood. And one of those responsibilities is planning for the unexpected.
Maybe you’ve heard your parents or grandparents talk about their Will? Or their medical directive or power of attorney?
What are these legal documents?
Chances are, you have heard of these documents. But in case you have not, here is a quick summary.
A Will is legal statement of how you want your property to be dealt with after your death. The property distributed following the instructions in a Will is called the estate. When you make a Will, you are the testator. The person you put in charge of carrying out the wishes in your Will is called your Personal Representative. A Will is only used after you die. The law for Wills is set out in Alberta’s Wills and Succession Act.
A Personal Directive (sometimes called a living will or medical directive) is a written, signed, dated and witnessed legal document. It gives someone else the right to make decisions for you about personal, non-financial matters while you are still alive. This includes decisions related to health care, housing and medical treatment. When you make a Personal Directive, you are the Maker and you name another person (your Agent) to make your personal decisions. The law for Personal Directives is set out in Alberta’s Personal Directives Act.
An Enduring Power of Attorney (EPA) is a written, signed, dated and witnessed legal document. It gives someone else the right to act on your behalf for your financial affairs while you are still alive. When you make an EPA, you are the Donor. You give your authority to another person (your Attorney) to deal with your financial affairs. Your EPA only applies while you are alive and comes to an end when you die. The law for EPA’s is set out in Alberta’s Powers of Attorney Act.
Chances are also that you have associated these documents with old people. But this is incorrect. In fact, every person over the age of 18 with capacity should have these documents.
Why should you be thinking about making these documents sooner rather than later?
First, you must have mental capacity to make these documents. Mental capacity means:
- the ability to understand the information relevant to making a decision, and
- the ability to appreciate the reasonably foreseeable consequences of the decision.
This definition is found in Alberta’s Personal Directives Act and Adult Guardianship and Trusteeship Act.
Mental capacity is measured on a spectrum. You have mental capacity for some things but not others. For example, you might have mental capacity to make decisions about what to do in a day (minor decisions) but not about selling your house (major decisions). Your mental capacity can also come and go. For example, maybe you were in an accident and are in a medically-induced coma. While you are in the coma, you do not have mental capacity! But once you wake up from the coma and recover, you may be mentally capable of making decisions for yourself again.
Second, none of us knows the future. It’s the proverbial “what if I get hit by a bus tomorrow” dilemma. You never plan on getting hit by a bus, but it could happen. Talking about death or disability is never fun or easy. And I’m not trying to sound all dark and doomsday. But the reality is that none of us will live forever.
Third, planning for the unexpected makes things easier for your loved ones if something does happen to you. Say you are injured in an accident. No one has the authority to make decisions for you unless they have a legal document saying so – either a court order, Personal Directive or Enduring Power of Attorney. A guardianship order is a court order naming a guardian to make personal decisions for you. A trusteeship order is a court order naming a trustee to make financial decisions for you. There are processes to get emergency court orders but it can still take a few days and money. Your family may also be unsure how to make decisions for you because they do not know what you would want. By making these documents ahead of time, you can say who makes decisions for you and how. It is a good idea to talk to your Agent, Attorney and Personal Representative before you complete the documents to make sure they are willing to act for you. You should also discuss your wishes with them.
How do you make these documents?
So now that I’ve convinced you that you need these documents, the next step is to make them! Here’s the good news: You can do it yourself. There are online services that can help or kits you can buy. Alberta’s Office of the Public Guardian and Trustee has a fillable form for a Personal Directive. You can also hire (retain) a lawyer to make them for you. Lawyers often charge a set fee to make all three documents for a person.
See CPLEA’s Planning for the Future resources for more information about these documents, including what you should think about before preparing them.
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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