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Where a Will deals with the management of an individual's affairs after death, an Enduring Power of Attorney and a Personal Directive deals with the management while the individual is alive. These two instruments are recent additions to the Wills and Estates practice in Alberta.
A Power of Attorney grants a person (the Attorney) the power to deal with an individual's estate while the person is still alive. In the past, it has been used where an individual is away from their place of residence for extended periods of time. The person would appoint someone to handle the financial matters during those periods of absence. If the person became mentally incompetent, the Power of Attorney would be invalid and the Attorney's power would end. Recently, the law was changed and allowed for Powers of Attorney to remain valid when a person becomes mentally incompetent. This allows for an individual to be able to plan ahead and appoint someone to handle their financial matters while they are incapacitated. Prior to this change in the law regarding Powers of Attorney, if a person became mentally incapacitated, a Court Order would have to be obtained in order for someone to be able to manage their affairs. This process, called Dependant Adults Orders, is a costly and time consuming legal procedure which is supervised by the Court.
A Personal Directive is a document which allows a person to state in advance what medical treatment they wish to receive and decisions to be made regarding their accommodation, activities and other personal matters if they are unable to communicate with medical or nursing staff or other care givers. Personal Directives are more commonly known as living wills as they primarily deal with the individual's wishes with respect to what type of medical care and intervention which they wish to receive or do not want to receive in circumstances of medical necessity during which the individual is unable to communicate with the attending medical personnel. In a Personal Directive, the person appoints a family member or doctor who will have the authority to consent to or refuse medical procedures. The person can also specifically state what procedures they do not want to be undertaken, such as CPR, feeding tubes or artificial life support systems. Often, the person making the decision is requested to do so on the advice of the attending physician and with full knowledge of the consequences of refusing treatment. At this point in time, the Alberta Legislature has passed the Personal Directives Act but the law is not in force. It is expected to be proclaimed in force in the spring of 1997.