Previous articles in this column have looked at the importance of having an Enduring Power of Attorney (EPA) and Personal Directive (PD) as part of an estate plan. These documents appoint a person to look after the financial affairs (Attorney) and health care (Health Agent) if the person making the document (Donor) becomes mentally incapacitated and can’t make decisions about these matters. These documents are commonly used in estate plans in Medicine Hat. I am receiving more inquiries about these documents as more of them come into effect with our aging population.
I have been appointed an Attorney- What do I do?
- The EPA gives the Attorney the authority to handle the financial affairs and property of the Donor.
- Some of the duties of the Attorney are to:
- act honestly, in good faith and in the best interests of the Donor;
- take the known wishes of the Donor and the manner in which the Donor managed the their affairs into consideration;
- use assets for the benefit of the Donor;
- keep the Donor’s property and funds separate from your property and funds;
- keep records of financial transactions for the Donor;
- and provide details of financial transactions for the Donor on request.
I have been appointed a Health Agent- What do I do?
- The PD gives the Health Agent authority to make personal decisions for the Donor. Generally these are decisions about living arrangements and consent to medical treatment. You cannot make some decisions unless the PD gives you specific power to make these decisions; for example, decisions about organ transplants.
- The Health Agent must notify the nearest relative and legal representative of the Donor within a reasonable period of time after the PD comes into effect, unless otherwise indicated in the PD.
- The Personal Directives Act requires the Health Agent to consult with the Donor (if the Donor still has some form of capacity) before making a decision.
- The Health Agent must follow any clear instructions contained in the PD.
- The Health Agent must keep a written record of decisions they have made and must keep this record for at least two years after their authority ends.
The Donor chose you as their Attorney or Health Agent because the Donor trusts you. This is an important appointment. You should review your duties and responsibilities with an estate planning lawyer before you assume your duties so you can make sure you carry out your appointment as the Donor intended.