“I don’t care. You decide.” How many times in life have you handed off a decision to someone else? Where to go on date night, what toppings for pizza, which show to watch with popcorn? A decision must be made! But the choice itself? These are low stakes decisions. “I don’t care. You decide.”
However, there are times when you might care very much about what choice is made, and it is your decision to make, but you cannot. Canadian law assumes autonomy and freedom for private citizens; decision-making is a central part of life in the community and in the family. So, who makes significant decisions for you when you cannot?
Substitute decision-making documents are an essential part of estate, disability, retirement, and life planning. These documents create a framework for you to exercise your autonomy over decisions in your life, even when you cannot make a decision. You can determine who makes a decision, whether they have to consider anything when making a decision (such as your own values or commitments), whether they must consult someone else, or if a decision and its consequences are foreseeable, you can even make a decision in advance! Substitute decision-making documents are powerful legal documents for you to ensure you keep control of your own life.
The most common substitute decision-making documents for life planning are the Personal Directive and the Enduring Power of Attorney. There are also Powers of Attorney and a whole host of other documents, too, depending on your need.
Powers of Attorney can be either Special or General. They are often used in real estate transactions, when you have to finalize real estate deals but cannot be physically present for closing. A Special Power of Attorney gives another individual authority to deal with a specific piece of property you own. A General Power of Attorney gives that individual authority over a general class of property. In other words, you give your own power over property to someone else to use on your behalf.
As these Powers of Attorney developed in Canadian-English Common Law, the Courts held that the giver of the Power, being the rightful owner of the Power, had to continuously consent to the Power being used by someone else. Well, Powers of Attorney are powerful documents then, but not as powerful as they could be. If you lose capacity, the Power of Attorney is revoked. For life planning, that could be the very time you want the Power of Attorney to be available.
This is how Enduring Powers of Attorney came to be. The Enduring Power of Attorney ‘endures’ even if you lose capacity. In fact, a ‘springing’ Enduring Power of Attorney will not even be effective until it ‘springs’ into effect at the moment of your incapacity. This is exactly what most of us want; we can delegate unimportant decisions with a quick, “I don’t care. You decide,” but most of us want to control the big important decisions. Enduring Powers of Attorney are perfect for this sort of life planning.
However, Enduring Powers of Attorney developed from Powers of Attorney, which only dealt with property. Important non-financial decisions are made with the Personal Directive. The Personal Directive is sometimes called a “Living Will,” “Medical Directive,” or “Health Care Power of Attorney.” In Alberta, it is called “Personal Directive.” This substitute decision-making document lets you decide what sort of medical treatment you do and do not consent to in advance. It can also provide guidelines for what sort of long-term care you receive, how your private and confidential information is handled, and can even control who can and cannot visit you.
At this time in Canada, “medical assistance in dying,” a process where a medical professional can assist in ensuring that you have a peaceful, painless death of your choosing, is not available if you are incapacitated. A Personal Directive will not be able to provide advance consent to medical assistance in dying; your consent must be continuous. It can, however, withdraw consent to life-saving treatment. If this is your choice, that choice is stated in a Personal Directive.
Without the substitute decision-making documents described here, important decisions affecting your property and personhood cannot be made within a framework that you create. Instead, your loved ones may have to go to court, describe to a judge the situation that you and your family are in, and receive a Trusteeship or Guardianship Order (or both). Your loved ones and the judge do care about what you want; but they are left guessing what that is.
Sometimes, “I don’t care. You decide” just doesn’t cut it. If the decision is important, have your say! Speak with a lawyer about drafting the necessary substitute decision-making documents.
David brings a professional work-ethic mixed with compassion in his practice at Wells Family Law. He specializes in family law and is able to assist your family with estate planning and administration. He is a member of the Canadian Bar Association, Association of Family and Conciliatory Courts, and the Alberta Civil Trial Lawyers Association. For more information, visit wellsfamilylaw.com.
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