WHAT IS A PERSONAL DIRECTIVE?
In daily life, we make our own decisions about personal and medical matters. But if something
happens, and we lose the mental capacity to make informed decisions, who will make these decisions for
us? Except in certain emergency circumstances, there is no one who can legally make these decisions,
unless you have in place a Personal Directive.
A Personal Directive is the legal term for what people often call a "Living Will." Although the idea
of a "Living Will" is not new, it was not until December 1, 1997 that the Personal Directives or "Living
Wills" became legally valid. A Personal Directive is simply a document in which you (the "Maker")
provide written directions about who can make medical and personal decisions on your behalf if you are
unable to and to provide instructions on your future care.
If you do not have a valid Personal Directive, the court can appoint a Guardian. This requires a
costly application and future reporting to the court. Through a Personal Directive, you can choose in
advance someone to make decisions for you if you become unable to, and this will avoid the court process.
The new Act does not validate Living Wills or Personal Directives made before December 1, 1997.
You must also remember when planning for your future that financial matters are not handled by the
Personal Directive, but are dealt with by an Enduring Power of Attorney. The Personal Directive can cover
many areas, but not those of a financial nature. Areas in which a Personal Directive can be used include
health care, accommodation, who you live and associate with, how you participate in social, educational
and employment settings, and all other legal decisions not relating to your financial status.
YOUR AGENT
It is important for you to choose the right person when appointing a decision maker in your Personal
Directive. The person you appoint becomes your "Agent." Your Agent should be someone who knows
you well and who will make decisions based on your wishes and directions.
When you create a Personal Directive you will outline specific instructions for a wide variety of
circumstances. However, you should also discuss with your Agent your beliefs and values and opinions on
various matters, since it will be functionally impossible to cover every circumstance in your Personal
Directive, particularly in the area of medical situations. Remember, your goal in choosing an Agent is to
choose a person who will properly represent your wishes and values. If your Personal Directive does not
contain clear directions about a certain matter, your Agent must make a decision based on what he or she
thinks you would have decided. Your Agent will also have to work closely with your Attorney for
financial matters. Provisions for this should be made in both your Personal Directive and your Power of
Attorney.
There are some areas in which your Agent has no authority unless you have given clear instructions
in your Personal Directive. For instance, your Agent cannot allow your organs or remains to be donated or
used for research unless you have specifically stated that he or she can make this decision. Also, if your
Personal Directive contains any instructions that are against the law, the instruction is void and your Agent
is under no obligation to follow it.
WHO CAN CREATE A PERSONAL DIRECTIVE?
Anybody can create a Personal Directive, as long as they at least 18 years old and understand the
nature and effect of the document. For your Personal Directive to be legally binding, it must be written,
dated and signed by you in the presence of one other person. This witness cannot, by law, be your Agent,
your Agent's spouse, or your own spouse.
A Personal Directive document can contain information and instructions about any personal matter.
It should include the authorization of your Agent to act in relation to all personal matters, and the naming
of one person to determine your capacity or incapacity. Your document should also name persons who are
or are not to be notified once the Personal Directive is in effect.
It should also be pointed out that there is no standard format for a Personal Directive. This gives you
the freedom to tailor the document to your specific needs and circumstances.
HOW A PERSONAL DIRECTIVE COMES INTO EFFECT
Your Personal Directive will come into effect only when you are unable to make decisions on
specific personal matters. Legally, you will lack this capacity when the person you have named for the
task makes the determination and states, in writing, that you no longer possess the needed decision-making
skills. This determination of incapacity can be made only after your Agent has consulted a physician or
psychologist. This takes into account the ongoing duty of health care professionals to make all reasonable
efforts to determine if you lack the capacity to make personal decisions.
Once your Personal Directive comes into effect, your Agent will have a number of duties. These
may include notifying your nearest relative and your legal representative that the Directive is now in effect.
Your Agent must provide to you a copy of the written declaration of incapacity, and must also advise you
that you can apply to the court to have the declaration reviewed. While the Directive is in effect, your
Agent must consult with you before making any decisions about your personal matters, but he or she
makes the final decisions. Your Agent must retain his or her record of all personal decisions made on your
behalf for at least two years after the Directive ceases to be in effect.
REVOKING A PERSONAL DIRECTIVE
You can revoke your Personal Directive at any time as long as you understand what you are doing.
You can also revoke a Personal Directive by making a new one.
No one can force you to make a Personal Directive. The lack of a Personal Directive cannot be used
to withhold any service from you. It cannot, for instance, be made a condition of residence that you have
such a document in place.
If you do create a Personal Directive, be sure to carry a card or notice stating the existence of the
Directive. The card should also identify your Agent. Carrying this on your person will be helpful in
emergency situations.
In conclusion, a Personal Directive is a relatively simple and straightforward alternative to a costly application to the court under the Dependent Adults Act.