Part 4
Service Providers
19 Providing
services
20 Authority
to provide service
21 Continuing
duty to consider capacity
22 Duty
to notify agent
23 Duty
to verify matters
24 Providing
emergency medical services
Part 5
Court Review
25 Application
26 Service
of originating notice
27 Decision
of Court
Part 6
Liability and Protection
28 Protection
from liability
29 No
disentitlement
Part 7
General
30 Access
to confidential information
31, 32 Offence
33 Regulations
Preamble
WHEREAS Albertans should
be able to provide advance personal instructions regarding their own personal
matters while recognizing that such instructions cannot include instructions
relating to aided suicide, euthanasia or other instructions prohibited by law;
THEREFORE HER MAJESTY,
by and with the advice and consent of the Legislative Assembly of Alberta,
enacts as follows:
Part 1
Definitions and Application
Definitions
1 In this Act,
(a) “agent”
means a person designated in a personal directive to make personal decisions on
behalf of the maker;
(b) “capacity”
means the ability to understand the information that is relevant to the making
of a personal decision and the ability to appreciate the reasonably foreseeable
consequences of the decision;
(c) “Court”
means the Court of Queen’s Bench;
(d) “dependent
adult” means a person who is the subject of a guardianship order made under the
Dependent Adults Act;
(e) “guardian”
means a guardian under the Dependent
Adults Act;
(f) “health
care” means any examination, procedure, service or treatment that is done for a
therapeutic, preventive, palliative, diagnostic or other health related
purpose;
(g) “legal
representative” means an attorney under the Powers
of Attorney Act or a guardian or trustee under the Dependent Adults Act;
(h) “maker”
means a person who makes a personal directive;
(i) “nearest
relative” means, with respect to any person, the relative of that person first
listed in the following subclauses, relatives of the whole blood being
preferred to relatives of the same description of the half‑blood and the
elder or eldest of 2 or more relatives described in any subclause being
preferred to the other of those relatives regardless of gender:
(i) spouse or adult interdependent partner;
(ii) son or daughter;
(iii) father or mother;
(iv) brother or sister;
(v) grandfather or grandmother;
(vi) grandson or granddaughter;
(vii) uncle or aunt;
(viii) nephew or niece;
(j) “personal
decision” means a decision that relates to a personal matter and includes,
without limitation, the giving of consent, the refusal to give consent or the
withdrawal of consent to health care;
(k) “personal
directive” means a directive made in accordance with Part 2;
(l) “personal
matter” means, subject to the regulations, any matter of a non‑financial
nature that relates to an individual’s person and without limitation includes:
(i) health care;
(ii) accommodation;
(iii) with whom the person may live and associate;
(iv) participation in social, educational and employment activities;
(v) legal matters;
(vi) any other matter prescribed by the regulations;
(m) “personal
service” means a service provided with respect to a personal matter;
(n) “service provider” means a person who
carries on a business or profession that provides or who is employed to provide
a personal service to an individual and when providing the service requires a
personal decision from the individual before providing the service.
RSA 2000 cP‑6
s1;2002 cA‑4.5 s63
Application
2 This Act applies only to
personal directives made on or after December 1, 1997.
1996 cP‑4.03 s2
Part 2
Personal Directives
Who can make a personal
directive
3(1) Any person who is at least 18 years of age and
understands the nature and effect of a personal directive may make a personal
directive.
(2) A person who is at least 18 years of age is
presumed to understand the nature and effect of a personal directive.
1996 cP‑4.03 s3
Personal directive by
dependent adult
4 Despite section 3, a dependent
adult may not make a personal directive with respect to a matter over which the
dependent adult’s guardian has authority.
1996 cP‑4.03 s4
Requirements of personal
directive
5(1) A personal directive must
(a) be
in writing,
(b) be
dated,
(c) be
signed at the end
(i) by the maker in the presence of a witness, or
(ii) if the maker is physically unable to sign the directive, by
another person on behalf of the maker, at the maker’s direction and in the
presence of both the maker and a witness, and
(d) be
signed by the witness referred to in clause (c) in the presence of the maker.
(2) The
following persons may not sign a personal directive on behalf of the maker:
(a) a
person designated in the directive as an agent;
(b) the
spouse or adult interdependent partner of a person designated in the directive
as an agent.
(3) The
following persons may not witness the signing of a personal directive:
(a) a
person designated in the directive as an agent;
(b) the
spouse or adult interdependent partner of a person designated in the directive
as an agent;
(c) the
spouse or adult interdependent partner of the maker;
(d) a
person who signs the directive on behalf of the maker;
(e) the spouse or adult interdependent partner
of a person who signs the directive on behalf of the maker.
RSA 2000 cP‑6
s5;2002 cA‑4.5 s63
More than one personal
directive
6 A person may make more than
one personal directive.
1996 cP‑4.03 s6
Contents of personal
directive
7(1) A personal directive may contain information
and instructions respecting any personal matter, including, without limitation,
the following:
(a) respecting
the designation of agents and their authority;
(b) designating
one or more persons to determine the maker’s capacity under section 9;
(c) naming
the persons who are and the persons who are not to be notified of the coming
into effect of the personal directive;
(d) providing
instructions with respect to access to confidential information about the
maker.
(2) If
a personal directive contains an instruction that is prohibited by law, the
instruction is void.
(3) A
personal directive may designate an agent
(a) by
naming the individual who is to act as the agent, or
(b) subject to the regulations, by naming an
office or position, the occupant of which is to act as the agent.
1996 cP‑4.03 s7
Revoking a personal
directive
8(1) If the maker understands the nature and effect
of revoking a personal directive, the maker may revoke the directive in whole
or in part in accordance with this section.
(2) A
personal directive is revoked, in whole or in part,
(a) on
the occurrence of a date or event that is stated in the personal directive to
be the date or event that determines when the personal directive, or part of
it, is revoked,
(b) by
the making of a subsequent personal directive that contradicts an earlier
directive, to the extent of the contradiction, or
(c) by
the making of any document, including a subsequent personal directive, that
expresses an intention to revoke an earlier personal directive or a part of it.
(3) A
document that revokes a personal directive must meet the requirements of
section 5.
(4) Despite subsection (3), a maker may revoke a
personal directive by destroying the originals of the directive with the
intention of revoking the directive.
1996 cP‑4.03 s8
Bringing personal
directive into effect
9(1) A personal directive, or part of a personal
directive, has effect with respect to a personal matter only when the maker
lacks capacity with respect to that matter.
(2) For
the purpose of subsection (1), a maker lacks capacity
(a) when
the person or persons designated in the personal directive to determine the
maker’s capacity make, after consulting with a physician or psychologist, a
written declaration that the maker lacks capacity, or
(b) if
(i) the personal directive does not designate a person to determine
the maker’s capacity, or
(ii) the person designated in the personal directive to determine the
maker’s capacity is unable or unwilling to do so or cannot be contacted after
every reasonable effort has been made,
when 2 service providers,
at least one of whom is a physician or a psychologist, make a written
declaration that the maker lacks capacity.
(3) A
physician or psychologist who has been consulted in the making of, or who
makes, a determination of a maker’s lack of capacity in accordance with
subsection (2) must keep a written record of the determination of lack of
capacity and the name of any other person involved in making the determination.
(4) When
a determination of lack of capacity has been made under subsection (2), the
person making the determination must provide a copy of the declaration to the
maker, the maker’s agent, if any, and any other person designated in the
maker’s personal directive and must advise them
(a) that
a determination has been made that the maker lacks capacity, and
(b) that
the maker may make an application to the Court for a review of the determination.
(5) Within a reasonable time after a personal
directive takes effect with respect to a personal matter, if an agent is
designated in the directive with respect to that matter, the agent must,
subject to the personal directive, make every reasonable effort to notify the
nearest relative and legal representative of the maker that the directive is in
effect.
1996 cP‑4.03 s9
Personal directive
ceases to have effect
10 A personal directive ceases to have
effect in the following circumstances:
(a) in
respect of a personal matter, during any period in which the maker regains and
has capacity;
(b) on
the maker’s death;
(c) on
revocation of the personal directive in accordance with section 8, to the
extent of the revocation;
(d) on a determination by the Court pursuant to
section 27 that the personal directive ceases to have effect.
1996 cP‑4.03 s10
Part 3
Agents
Effect of agent’s decisions
11 A personal decision made by an
agent in accordance with this Act has the same effect as if the maker had made
the personal decision while the maker had capacity.
1996 cP‑4.03 s11
Limitations on agent’s authority
12 If, at any time while a personal
directive is in effect, an agent designated in the directive
(a) is
under 18 years of age, or
(b) lacks
the capacity to make personal decisions on behalf of the maker,
the agent has no authority to act under the personal
directive.
1996 cP‑4.03 s12
Duty to consult
13 Before making a personal
decision pursuant to a personal directive, an agent must consult with the maker
regarding the decision.
1996 cP‑4.03 s13
Agent’s authority
14(1) Unless a personal directive provides otherwise,
an agent has authority to make personal decisions on all personal matters of
the maker.
(2) An
agent must follow any clear instructions provided in the personal directive
that are relevant to the personal decision to be made.
(3) If
the personal directive does not contain clear instructions that are relevant to
the decision to be made, the agent must
(a) make
the decision that the agent believes the maker would have made in the
circumstances, based on the agent’s knowledge of the wishes, beliefs and values
of the maker, or
(b) if the agent does not know what the maker’s
wishes, beliefs and values are, make the decision that the agent believes in
the circumstances is in the best interests of the maker.
1996 cP‑4.03 s14
Limitation on authority
15 Despite section 14, an agent has no
authority to make personal decisions relating to the following matters unless
the maker’s personal directive contains clear instructions that enable the
agent to do so:
(a) psychosurgery
as defined in the Mental Health Act;
(b) sterilization
that is not medically necessary to protect the maker’s health;
(c) removal
of tissue from the maker’s living body
(i) for implantation in the body of another living person pursuant to
Part 1 of the Human Tissue Gift Act,
or
(ii) for medical education or research purposes;
(d) participation
by the maker in research or experimental activities, if the participation
offers little or no potential benefit to the maker;
(e) any other matter prescribed in the
regulations.
1996 cP‑4.03 s15
More than one agent
16(1) If more than one agent is authorized to act
with respect to the same personal matter and the agents are unable to agree on
who will communicate decisions, the agent designated first in the personal
directive is authorized to communicate decisions.
(2) If
more than one person is designated as an agent and
(a) each
agent has the same authority,
(b) the
agents do not agree on a decision, and
(c) the
personal directive contains no directions for resolving the disagreement,
the decision of the majority of the agents is deemed to be
the decision.
1996 cP‑4.03 s16
Duty to keep records
17(1) An agent must
(a) keep
a record of personal decisions made by the agent under a personal directive,
and
(b) keep
the record during the period that the maker lacks capacity and for at least 2
years after the agent’s authority ceases.
(2) During
any period of time that an agent is required to retain a record of personal
decisions, the agent, on request,
(a) must,
subject to a personal directive, provide a copy of the record to the following:
(i) the maker;
(ii) the maker’s lawyer;
(iii) the maker’s legal representative who has authority with respect
to a matter addressed in the record, but only that portion of the record that
is relevant to that person’s authority;
(iv) any other agent who has decision‑making authority with
respect to a matter addressed in the record, but only that portion of the
record that is relevant to that person’s authority;
(b) may, subject to a personal directive,
provide a copy of the record or any portion of it to any person if the agent
considers that it is in the interests of the maker to do so.
1996 cP‑4.03 s17
Remuneration
18 An agent is not entitled to
receive any remuneration for exercising any authority under the personal
directive unless the personal directive so provides.
1996 cP‑4.03 s18
Part 4
Service Providers
Providing services
19(1) If a service provider intends to provide
personal services with respect to a personal matter to a maker who lacks
capacity and a personal directive is in effect, the service provider must
(a) if
the personal directive designates an agent, follow any clear instructions of
the agent that are relevant, or
(b) if
the personal directive does not designate an agent or if the agent designated
is unable or unwilling to make a personal decision or cannot be contacted after
every reasonable effort has been made, follow any clear instructions in the
personal directive that are relevant to the decision to be made.
(2) If
(a) an
agent has not been designated under the personal directive with respect to a
personal matter and the personal directive does not contain any clear and
relevant instructions for the service provider to follow under subsection
(1)(b), or
(b) an
agent has been designated under the personal directive with respect to a
personal matter, but
(i) the agent cannot be contacted after every reasonable effort has
been made by the service provider, or
(ii) the agent is unable or unwilling to make a personal decision,
the service provider must make every reasonable effort to
contact the maker’s nearest relative or any other individual described in the
regulations for the purpose of informing the relative or other individual of
the circumstances.
1996 cP‑4.03 s19
Authority to provide
service
20 A personal service provided in
accordance with this Act by a service provider has the same effect as if the
authority to provide the service had been given by the maker while the maker
had capacity.
1996 cP‑4.03 s20
Continuing duty to
consider capacity
21(1) Despite that a service provider is aware that a
determination has been made that a maker lacks capacity, the service provider
must, before providing a personal service, make a reasonable effort to
determine if the maker continues to lack capacity.
(2) If a service provider believes that a maker
continues to lack capacity, the service provider may, in providing services to
that maker, continue to rely on the previous determination of lack of capacity.
1996 cP‑4.03 s21
Duty to notify agent
22(1) A service provider who believes that a maker
has regained capacity to make a personal decision with respect to a personal
matter must, before acting on the maker’s personal decisions, notify the agent, if any, that in the opinion of the service provider
the maker has regained capacity.
(2) The
service provider may act on the maker’s personal decisions if the agent does
not object.
(3) If the agent objects to the service provider’s
acting on the maker’s personal
decisions, the service provider must not so act unless the Court
determines that the maker has capacity.
1996 cP‑4.03 s22
Duty to verify matters
23 If a person claims to be an agent with
authority to provide a service provider with a personal decision, the service
provider must satisfy himself or herself
(a) as
to the identity of the person who claims to be an agent, and
(b) as to
the authority of the agent to make the personal decision.
1996 cP‑4.03 s23
Providing emergency
medical services
24(1) If a person who appears to lack capacity has
made a personal directive but
(a) the
personal directive has not been located,
(b) the
agent designated in the personal directive to make the personal decision with
respect to the matter is unable or unwilling to make the decision or cannot be
contacted after every reasonable effort has been made and the personal
directive does not contain any clear and relevant instructions, or
(c) the
personal directive does not designate an agent and the personal directive does
not contain clear and relevant instructions,
a health care
practitioner may provide emergency medical services, without consent, to the
person.
(2) If
a health care practitioner has provided an emergency medical service under
subsection (1), the health care practitioner must as soon as practicable make a
reasonable effort to contact any one of the following for the purpose of
informing that person that an emergency medical service has been provided under
this section:
(a) the
agent or guardian, if any, of the person to whom an emergency medical service
has been provided;
(b) the
nearest relative if there is no agent or guardian;
(c) any other individual described in the
regulations, if there is no nearest relative.
1996 cP‑4.03 s24
Part 5
Court Review
Application
25 A person who makes a personal
directive or any other interested person may apply to the Court by way of
originating notice for any one or more orders referred to in section 27.
1996 cP‑4.03 s25
Service of originating
notice
26(1) The originating notice must be served on the
maker and the persons described in the regulations and on any other person the
Court determines should be served.
(2) The
Court may, if the Court considers it appropriate to do so, with respect to any
or all of the persons referred to in subsection (1),
(a) shorten
the time for service,
(b) direct
the manner of service or approve the manner of service that has been effected,
or
(c) dispense
with the requirement for service except with respect to the person who is the
subject of the application.
(3) Despite subsection (1), an application may be
made ex parte if the Court considers it appropriate to do so.
1996 cP‑4.03 s26
Decision of Court
27(1) The Court may, on hearing an application under
section 25, do any one or more of the following:
(a) make
a determination of capacity of the maker or agent after considering a report
made under subsection (2)(b);
(b) determine
the validity of a personal directive or any part of it;
(c) based
on instructions contained in a personal directive, vary, confirm or rescind a
personal decision, in whole or in part, made by an agent;
(d) determine
the authority of an agent;
(e) provide
advice and directions;
(f) make
a decision where a majority cannot agree under section 16(2);
(g) stay
a decision of an agent;
(h) make
any other order that the Court considers appropriate that is not inconsistent
with a personal directive.
(2) For
the purpose of assisting the Court in making a decision under subsection (1),
the Court may
(a) require
an agent to provide to the Court a report of the personal decisions made by the
agent, or
(b) order
that a report on the capacity of a maker or an agent be prepared.
(3) In making a decision under subsection (1), the
Court may not add to or alter the intent of an instruction contained in a
personal directive.
1996 cP‑4.03 s27
Part 6
Liability and Protection
Protection from
liability
28(1) No action lies against an agent for anything
done or omitted to be done in good faith while carrying out the authority of
the agent in accordance with this Act.
(2) No
action lies against a service provider for anything done or omitted to be done
in good faith in acting or purporting to act in accordance with this Act.
(3) No
action lies against an agent or service provider for anything done or omitted
to be done in good faith in reliance on a personal directive if the maker of a
personal directive has
(a) changed
or revoked the personal directive, or
(b) revoked
the authority of the agent
without the knowledge of the agent or service provider, as
the case may be.
1996 cP‑4.03 s28
No disentitlement
29 If an agent has acted in good faith, a
personal decision made by the agent does not affect the entitlement of the
agent or the agent’s spouse or adult interdependent partner, or anyone claiming
through either of them, to the following:
(a) a
disposition under the will of the maker;
(b) the
proceeds of an insurance policy on the life of the maker;
(c) a
share of the estate of the maker under the Intestate
Succession Act;
(d) an order under the Dependants Relief Act.
RSA 2000 cP‑6
s29;2002 cA‑4.5 s63
Part 7
General
Access to confidential
information
30(1) Despite any other enactment respecting the
disclosure of confidential personal information, but subject to any limitation
set out in a personal directive, an agent or a person referred to in section
9(2) has the right to be provided with the information and records respecting the
maker that are relevant to the personal decision to be made or the
determination of the maker’s capacity, as the case may be.
(2) An agent or a person referred to in section
9(2) may use the information and records described in subsection (1) only to carry
out the authority of the agent or to determine the maker’s capacity, as the
case may be.
1996 cP‑4.03 s30
Offence
31 Any person who, without the
consent of the person who makes or revokes a personal directive, wilfully
destroys, conceals or alters the personal directive or a document revoking the
personal directive is guilty of an offence and liable to a fine of not more
than $10 000.
1996 cP‑4.03 s31
Offence
32 Any person who requires, as a
condition for a person obtaining residential accommodation or for continued
residence in residential accommodation, that the person make a personal
directive is guilty of an offence and liable to a fine of not more than
$10 000.
1996 cP‑4.03 s32
Regulations
33 The Minister may make regulations
(a) defining
words or expressions used in this Act;
(b) providing,
for the purposes of removing doubt, that a matter is or is not a personal
matter;
(c) prescribing
matters for the purposes of section 1(l);
(d) respecting
the designation of an agent by naming an office or position;
(e) prescribing
matters for the purposes of section 15(e);
(f) describing
the categories of persons to be contacted for the purposes of sections 19(2)
and 24(2)(c);
(g) describing
the categories of persons who must be served under section 26(1);
(h) respecting forms for the purposes of this
Act.
1996 cP‑4.03
s33;1997 c18 s20
