21 Continuing
duty to consider capacity
23 Duty
to verify matters
24 Providing
emergency medical services
Part 4.1
Public Guardian
24.1 Delegation by Public Guardian
24.2 Complaints to
Public Guardian
24.3 Investigation
by Public Guardian
24.4 Powers of
Public Guardian after investigation
24.5 Collection and
disclosure of information
24.6 Notification of
authorities
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 Information
31, 32 Offence
33 Regulations
34 Lieutenant Governor in Council regulations
Preamble
WHEREAS Albertans should
be able to provide advance personal instructions regarding their own personal
matters while recognizing that such instructions may only be made voluntarily
and 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;
(b.1) “complaint”
means a complaint made under section 24.2;
(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, except in section 7(1)(e), 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;
(f.1) “health
information” means health information within the meaning of the Health
Information Act;
(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;
(k.1) “personal
information” means information, including health information, about an
identifiable individual;
(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;
(m.1) “Public
Guardian” means the Public Guardian appointed under the Dependent Adults Act;
(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;
(o) “significant change” means an observable and
sustained improvement that does not appear to be temporary.
RSA 2000 cP‑6
s1;2002 cA‑4.5 s63;2007 c37 s3
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
Form of personal directive
6.1 The Minister may, by regulation,
establish a form for personal directives, but the use of that form is not
mandatory.
2007 c37 s4
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;
(e) if
the maker is a guardian of a minor, designating an agent to take over the care
and education of the minor until
(i) another guardian of the minor takes over the care and education
of the minor,
(ii) a guardian is appointed to take over the care and education of
the minor under the Family Law Act or the Child, Youth and Family
Enhancement Act, or
(iii) a determination is made under section 10.1 that the maker has
regained capacity.
(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.
(4) A personal directive may designate
the Public Guardian as agent if
(a) the
Public Guardian is the only agent designated in the personal directive,
(b) the
maker satisfies the Public Guardian that no other person is able and willing to
act as agent, and
(c) the Public Guardian consents to being
designated as agent.
RSA 2000 cP‑6
s7;2007 c37 s5
Public Guardian as agent
7.1 If a maker designates the Public Guardian
as agent in a personal directive, the maker must provide the Public Guardian
with the information required under the regulations.
2007 c37 s6
Registration of
information
7.2(1) The
maker of a personal directive may register the information prescribed in the
regulations in accordance with the regulations.
(2) The information referred to in
subsection (1) may be accessed, used and disclosed in accordance with the
regulations.
2007 c37 s6
Directive made outside
Alberta
7.3 A directive made outside Alberta that
complies with the requirements of Part 2 has the same effect as if it were made
pursuant to this Act.
2007 c37 s6
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) with
respect to a personal matter, when a determination that the maker has regained
capacity to make decisions with respect to that matter is made under section
10.1;
(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.
RSA 2000 cP‑6
s10;2007 c37 s7
Determination of
regained capacity
10.1(1) When
a personal directive is in effect with respect to a personal matter, if it
appears to an agent who has authority to make personal decisions with respect
to that matter that there has been a significant change in the maker’s
capacity, the agent must
(a) consult
with a service provider who provides health care services and assess the
maker’s capacity in accordance with the regulations, and
(b) if
the agent and service provider agree that the maker has regained capacity to
make decisions with respect to that or other personal matters, make a
determination in the prescribed form.
(2) When a personal directive is in
effect with respect to a personal matter, if it appears to a service provider
who provides or who intends to provide health care services to the maker that
there has been a significant change in the maker’s capacity, the service
provider must
(a) consult
with any agent who has authority to make personal decisions with respect to
that matter and assess the maker’s capacity in accordance with the regulations,
and
(b) if
the service provider believes, or if there is an agent as described in clause
(a), the service provider and the agent agree, that the maker has regained
capacity to make decisions with respect to that or other personal matters, make
a determination in the prescribed form.
(3) A maker may request that the maker’s
agent or a service provider who provides health care services assess the
maker’s capacity under subsection (1) or (2), as the case may be, but the agent
or service provider may refuse the request if it does not appear to the agent
or service provider that there has been a significant change in the maker’s
capacity to make personal decisions.
(4) If an assessment has been done under
subsection (1) or (2) and the agent and the service provider do not agree as to
whether the maker has regained capacity, the agent must arrange to have the
maker’s capacity assessed under subsection (5), and if the agent does not make
arrangements as soon as is practicable, any service provider may do so.
(5) Where subsection (4) applies, 2
service providers, at least one of whom is a physician or a psychologist, may
assess a maker’s capacity and make a determination in accordance with the regulations
that the maker has regained capacity to make decisions with respect to one or
more personal matters.
(6) When a determination has been made
under this section, the person making the determination must provide a copy of
the determination to the maker, to the maker’s physician and agent, if
applicable, and to the operator of a residential facility that provides
accommodation to the maker, if applicable.
2007 c37 s8
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
22 Repealed 2007 c37 s9.
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 4.1
Public Guardian
Delegation by Public
Guardian
24.1 Where the Public Guardian is given any
power or duty under this Act or by an order of the Court, the Public Guardian
may authorize in writing one or more persons to exercise or perform that power
or duty on any conditions or in any circumstances that the Public Guardian
prescribes, and afterwards that power or duty may be exercised or performed by
the person or persons in accordance with the authorization in addition to the
Public Guardian.
2007 c37 s10
Complaints to Public
Guardian
24.2(1) Any
interested person may make a complaint to the Public Guardian if a personal
directive is in effect and there is reason to believe that
(a) an
agent of the maker is failing to comply with the personal directive or the
duties of an agent, and
(b) the
failure is likely to cause harm to the physical or mental health of the maker.
(2) A complaint must be in writing and
signed by the complainant, and may be in a form provided for in the
regulations.
(3) No complaint may be made under
subsection (1) in respect of anything done or omitted to be done by an agent
before this section came into force.
2007 c37 s10
Investigation by Public
Guardian
24.3(1) The
Public Guardian must review a complaint to decide whether an investigation of
the complaint is necessary and must notify the complainant of the decision.
(2) If the Public Guardian conducts an
investigation, the Public Guardian must, as soon as is practicable in the
circumstances, make a reasonable effort to notify the following persons that
the Public Guardian is conducting the investigation:
(a) the
maker;
(b) the
agent who is the subject of the complaint;
(c) any
other agents designated in the personal directive;
(d) any
service providers named in the complaint.
(3) For the purpose of conducting an
investigation the Public Guardian may interview any person who may assist in
the investigation, and is entitled to access to all records that may be
relevant to the investigation that are held by the agent who is the subject of
the complaint or a service provider, including records containing personal
information and health information, for the purpose of inspecting them, making
copies of them or taking extracts from them.
(4) If the Public Guardian is refused
access to records referred to in subsection (3), the Public Guardian may apply
to the Court by originating notice for an order, and the Court may grant an
order, permitting the Public Guardian to require the production of any records
that may be relevant to the investigation.
2007 c37 s10
Powers of Public
Guardian after investigation
24.4 If, after conducting an investigation,
the Public Guardian is satisfied that there are reasonable grounds to believe
that the grounds for complaint set out in section 24.2(1) apply to the agent
who is the subject of the complaint, the Public Guardian may do one or more of
the following:
(a) attempt
to resolve any matter relating to the complaint;
(b) refer
the complainant, the agent who is the subject of the complaint and any other
persons the Public Guardian considers appropriate to an alternative dispute
resolution process acceptable to the Public Guardian or provided for in the
regulations;
(c) apply
to the Court under section 25 for one or more orders referred to in section 27.
2007 c37 s10
Collection and
disclosure of information
24.5(1) The
Public Guardian and anyone acting for or under the direction of the Public
Guardian
(a) may
collect and use personal information for the purposes of conducting an
investigation or resolving a complaint under this Part, and
(b) must
not disclose any personal information obtained under this Part, except as
provided in this section.
(2) The Public Guardian may use or
disclose, or may authorize anyone acting for or under the direction of the
Public Guardian to use or disclose, personal information
(a) if
the use or disclosure is necessary for the purposes of conducting an
investigation or making an application to the Court,
(b) if
the disclosure is for the purposes of section 24.6, or
(c) if
the disclosure is authorized or required under the Freedom of Information
and Protection of Privacy Act or another enactment.
2007 c37 s10
Notification of
authorities
24.6(1) If
the Public Guardian or a person acting for or under the direction of the Public
Guardian reasonably believes that the subject‑matter of a complaint could
constitute
(a)
