Executor 101January 24, 2011
Who is a Guardian?April 25, 2011
A Personal Directive (PD) is an important document that should be part of your estate plan. Your PD appoints your chosen person to make non-financial decisions about personal matters for you if you lose the mental capacity to make these decisions.
Your PD is generally used for your health care decisions. The PD is based on a black and white definition of mental capacity. For the PD to come into effect, two health care providers, usually doctors, must declare you have lost mental capacity to make decisions about personal matters. You either have mental capacity or you don’t!
New research identifies mental capacity as having a number of different stages. The Alberta Government has considered and applied this research when it passed the Alberta Guardianship and Trusteeship Act (AGTA). The AGTA provides a new document called a Supported Decision Making Authorization (SDMA). The SDMA allows an adult (Supported Adult) who understands the nature and effect of an SDMA to appoint one to three Supporters to help the Supported Adult make decisions about personal matters. The Supporter cannot make decisions for the Supported Adult. The SDMA gives the Supporter the authority to do any or all of the following:
- assist in collecting information relevant to the decision;
- assist the Supported Adult in making the decision; and
- communicate or assist in communicating the decision.
On receiving a properly signed SDMA, health care professionals can release information to the Supporter without worrying about releasing confidential information relating to the Supported Adult.
The SDMA must be in the form prescribed by the Regulations. You can obtain a Form from your lawyer or from the Public Guardian’s website at http//www.seniors.alberta.ca/opg/.
The AGTA sets out responsibilities of the Supporter. These include keeping a written record of decisions made by the Supported Adult. The Supporter must keep the record for a period of two years after the Supporter no longer has authority. The SDMA ceases when the Supported Adult loses mental capacity. At that point, the PD will come into effect, if the adult has one.
The SDMA will be useful in the following situations:
- allowing children to assist their elderly parents to make personal matters decisions;
- allowing a Supporter to help a Supported Adult whose first language is not English.
If you think a SDMA would be of assistance to you, a family member or friend, please contact your lawyer to obtain more information about this new estate planning document.