What would happen if you suddenly lost the capacity to make important decisions?
Who would decide on your health matters and make key financial decisions on your behalf?
Most people do not consider this important question until their later years. Unfortunately, whether as a result of an accident, illness, or another major life event, it can happen to anyone at any time.
Families are usually left to pick up the pieces, encountering legal difficulties and delays unless plans have been put in place.
By taking a few important advance care planning measures, you can help your family make decisions for you, in the event of future mental incapacity.
Such matters can be difficult to discuss but, at Spectrum Family Law in Edmonton, our lawyers can walk you through the process and draft the documentation that protects you and your family.
With people generally living longer around Canada, more families are enquiring about advance care planning.
The starting place is usually arranging a power of attorney and a personal directive.
As opposed to a will, probate, trust planning, etc., which address your financial affairs after you are gone, advance care planning addresses your medical and financial needs while you are still alive.
These documents help you prepare for making key decisions in the future if you become sick, injured, or incapacitated.
Without these documents, it can be challenging for families to make the necessary medical and financial arrangements when the key decision-maker loses mental capacity.
Under Alberta law, family members will need to make an application to the court for a guardianship order in the absence of the correct documentation. Family members are unable to make these decisions without going through this often-time-consuming legal process unless the advance care planning measures have been taken.
So, by following a few important steps now, you can ensure that a trusted, willing and capable individual can make decisions on your behalf if you are unable to.
Healthcare decisions in the event of incapacitation
Healthcare decisions if you lose mental capacity as you age
Other decisions that you have expressly communicated
Unfortunately, many families leave advance care planning too late because it can be an “awkward” topic to discuss and some have a mindset of “it won’t happen to me”.
What should you include in an advance care plan?
A comprehensive advance care plan will normally include:
An enduring power of attorney
A personal directive or “living will”
Ideally, these documents are prepared early enough in your life to make provisions for if you suffer sudden incapacitation (like in a car accident or with a sudden illness) or when you are ageing and nearing the end of your life.
The lawyers at Spectrum Family Law in Edmonton will provide direction for you about what to include, depending on your circumstances.
You may also like to consult with healthcare professionals and make sure to include your family in discussions as your decisions are likely to affect your closest loved ones the most.
How can an Enduring Power of Attorney help if you are sick or injured?
No long-term care plan is complete without an Enduring Power of Attorney.
This document allows you to nominate, in writing, a specific individual (or group of individuals) to make health and financial decisions on your behalf if you are no longer capable of doing so.
The problem that some families encounter is that they only realize the need for this document after their loved one has lost mental capacity. That is too late.
You need to make arrangements before incapacitation occurs – whether it is due to age, sickness, or an accident.
What happens with a lengthy illness?
Age-related illnesses and other lengthy bouts of sickness can be extremely tough on families.
However, they do generally allow time to put steps in place for some advance care planning because mental decline may be slower and more predictable than with sudden brain injury, for instance.
By appointing a trusted party to act on your behalf (your “agent”), medical and financial decisions can be made for you without delay if your condition deteriorates.
What happens with incapacitation due to an accident?
Sudden mental incapacitation, such as with a traumatic brain injury suffered in an accident, creates severe difficulties for families.
Not only must loved ones face the shock of what’s happened to their family member but, if nobody is authorized to act on financial and medical matters, frustrating delays can result.
This is why it’s important to prepare the necessary documents as early as possible in life. Remember, nominated parties and other details can easily be changed in the future if your circumstances change.
What is a personal directive?
In Alberta, living wills are called “personal directives”.
This document allows you to nominate another individual to make personal decisions on your behalf if and when you are unable to do so.
Some typical decisions that need making as you grow older or suffer incapacitation include:
Where you would like to live
With whom you would like to live
Who will care for any dependent children?
Personal matters relating to employment, education or recreation
As you can see, the scope of a personal directive is a little broader than a power of attorney.
Depending on the nature of your incapacitation and the personal directive document you create, the nominated party or parties have the legal authority to make decisions for you on a temporary or permanent basis.
What does advance care planning not include?
Advance care planning does not preclude the need for other important estate planning documents.
It provides only for your health care needs and related financial matters while you are alive.
As soon as you pass, advance care planning documentation becomes invalid and your will provides instructions for the division of assets, arrangements for dependent children, etc.
Talk to one of our lawyers about drawing up a will if you have not already done so.
Remember that these important documents should be drawn up by a lawyer to make them legally enforceable.
To start preparing for whatever the future may hold, arrange a free case assessment with one of the experienced estate planning lawyers at Spectrum Family Law in Edmonton.