Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
Implications of No Personal Directive
Legally protect your health and medical interests while still alive, yet incapable of acting for yourself due to personal incapacity.
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
Without a personal directive for health and medical care, should you become incapacitated (or otherwise incapable of managing your own care), your loved ones will have to petition the Court to appointed your guardian, which is time-consuming and costly process. This process is governed by the Adult Guardianship and Trusteeship Act (Alberta) and is specifically designed to protect individuals who can no longer make safe choices regarding their healthcare, living arrangements, or social activities. Unlike a pre-incapacity Personal Directive, which is a private document, Guardianship requires a formal court application to the Court to strip you of your right to self-determination. This is a significant legal undertaking because the Court must be convinced that you are truly incapable and that there is no less intrusive way to ensure your well-being.
The first major hurdle in this process is that the applicant must obtain a formal capacity assessment, which must be completed by a physician, psychologist, or a designated capacity assessor. This clinical evaluation focuses on the adult's ability to understand information relevant to making a decision and their ability to appreciate the reasonably foreseeable consequences of a decision or lack of one. If the adult is resistant to the assessment, the process becomes even more difficult, as the applicant may need to apply for a Court Order just to compel the evaluation. Once the assessment is complete, it remains valid for only six months, meaning the applicant must move quickly to file the rest of the application before the medical evidence expires. This initial phase is often the most emotionally taxing part of the work, as it officially labels the subject person as legally incapable to the Court.
The administrative workload for a Guardianship application is substantial and requires a high level of detail regarding the subject individual’s personal life. The applicant must prepare a Guardianship Plan, which is a forward-looking document detailing where the subject individual will live, what healthcare they will receive, and who they will be permitted to associate with. The applicant must also undergo a rigorous vetting process that includes a criminal record check and a vulnerable sector search to prove they are fit to make life-and-death decisions for another person. The applicant is also legally required to serve notice to all of the subject individual’s immediate family members, providing them with the full application package so they have the opportunity to object. If a family member disagrees with the applicant's proposed plan or their suitability as a guardian, this process escalates into a contested Court hearing where a judge must weigh conflicting testimony to decide who is best suited for the role.
Once the applicant is appointed by the court, their responsibilities transition into a permanent, high-stakes management role that is monitored by the Office of the Public Guardian and Trustee. The applicant is legally obligated to follow the Guardianship Plan approved by the Court, and any major changes to the subject individual’s living situation or healthcare regime may require the applicant to seek further Court approval. Every few years, the applicant will be required to submit a report to the Court or the Office of the Public Guardian and Trustee detailing the subject individual's status and any significant decisions the applicant has made on their behalf. The appliant must act in the subject individual's best interests at all times, which involves balancing their safety with their right to as much independence as possible. This ongoing stewardship is a heavy burden, as the applicant is personally responsible for navigating the healthcare system, consenting to surgeries, and ensuring the subject individual's dignity is maintained throughout their period of incapacity.
As is evident from this brief overview, having a valid personal directive for health and medical care enacted prior to your becoming incapacitated or otherwise incapable of managing your personal care and affairs is highly preferable to the arduous (and costly process) of having the Court appoint a family member as your guardian. So, whether you are looking to have a personal directive created or require legal representation in the implementation of an incapacitated person’s personal directive, contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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