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CENTREPIECE
2000 Newsletter of the Alberta Civil Liberties Research Centre Vol. 6 No. 2
Inside.....
Feature: Seniors and Personal Directives
by Anna S. Pellatt
What is a personal directive?
A personal directive is a legal document which provides seniors and other adults with the means to plan for the time when they are incapable of making personal decisions for themselves. In a personal directive, a person may name one or more people to make health care and other kinds of personal decisions for them during the time when they are not mentally competent to do so. These individuals are known as agents. The person making the personal directive (the "maker") can also indicate the areas in which he wants his agents to make decisions for him and include instructions regarding the care and treatment he wants and does not want to receive when he becomes incompetent. The Personal Directives Act, which became law on December 1, 1997, sets out legal guidelines for the preparation and enforcement of personal directives.
Why should seniors prepare personal directives?
There are a number of good reasons why seniors, and, in fact, all adults, should have personal directives. Personal directives enable seniors to exercise some control over what happens to them when they are either temporarily or permanently unable to make personal decisions for themselves. As noted earlier in this handbook, only a guardian, an agent named in a personal directive or a formally committed mental health patient's nearest relative has the legal authority to make health care and other personal decisions for a person who is not mentally competent.
If you have not prepared a personal directive and you become incompetent it is likely that your relatives and loved ones will be forced to go to the trouble and expense of obtaining a guardianship order in order to ensure that your personal needs and care are looked after. Personal directives enable seniors to pick the person or persons they want to act as their substitute decision-makers and indicate the kinds of decisions they want them to make on their behalf. Seniors who have not prepared personal directives and are placed under guardianship may not have control over any of these matters. A personal directive can also provide a valuable record of a senior's wishes regarding the care and treatment she wants and does not want. This record can help guide agents, guardians and others who are making decisions for and providing services to seniors when illness or injury strike. Doctors must pay attention to what a senior has said about her treatment preferences in a personal directive. The law says that doctors must respect the treatment wishes of an incompetent patient which the patient expressed when she was competent.
Can seniors be forced to prepare personal directives?
No. Each senior is free to decide whether to prepare a personal directive or not. Under
the Personal Directives Act, it is against the law for institutions and other
residential facilities to pressure seniors into making personal directives by denying them
accommodation or threatening to terminate their accommodation if they do not do so. Anyone
who does this can be convicted of an offence and forced to pay a fine of up to $10,000.
When does a personal directive come into effect?
A personal directive comes into effect when the person who has made it is no longer
competent to deal with the matters addressed in the personal directive. A person is
considered to be incompetent or to lack capacity when the person or persons designated in
the personal directive to determine the issue of capacity make a written declaration to
this effect after consulting a physician or psychologist. In cases where the personal
directive does not name someone to determine the maker's capacity or the person named in
the personal directive is unable or unwilling to make a determination or cannot be
contacted, the personal directive comes into effect when two service providers make a
written declaration that the maker lacks capacity. One of the two service providers who
make this determination must be a physician or psychologist. The Personal Directives
Act requires physicians and psychologists who have been consulted in the making of
written declarations or have made written declarations regarding a maker's lack of
capacity to keep a written record of the determination. The Act also requires those who
have made the determination to provide copies of the written declaration to the maker, the
maker's agent and any other person designated in the personal directive. The maker has the
right to apply to Court for a review of the determination.
Who can seniors name as their agent in a personal directive?
It is important to note that you do not have to appoint anyone to make decisions for you when you make a personal directive. However, if you do decide to take this course you should ensure that the people you pick as you agents are willing and able to take on this responsibility. A person cannot be forced to become a senior's agent. Agents must be 18 years of age and over and be mentally competent when the personal directive comes into effect. You should also ensure that the people you name as agents are familiar with your preferences and wishes and would be comfortable carrying them out. Seniors can appoint the Public Guardian as their agent as well as rabbis, other clergymen, and service providers. However, naming a physician, lawyer or other kind of service provider as an agent may not be wise because the service provider may end up having to make a decision which is in conflict with his profession or position (Government of Alberta, Choosing now for the future - A guide to writing your personal directive at 10.) If you do decide to name a service provider as your agent you must provide the name of the person you have chosen in your personal directive. You cannot just say that you want your doctor or lawyer to act as your agent. This requirement is in place to clarify the choices seniors have made and thus protect their interests.
You can name one agent to make all decisions for you plus an alternate agent to take
over in case the agent dies or is ill or temporarily absent. You can also name more than
one agent to make particular kinds of decisions for you such as health care decisions or
different agents to make different kinds of decisions. If your agents cannot agree on a
particular decision the decision of the majority of the agents will be the one that is
implemented unless you direct otherwise in your personal directive. You may decide to
include a provision in your personal directive appointing another person to resolve
disputes among agents or specify some other means of resolving disputes. You can also ask
the Court of Queen's Bench to make the decision in cases where a majority of agents cannot
agree on what decision should be made.
What are the duties and responsibilities of agents?
The agent or agents named in a personal directive have the authority to make all personal decisions on behalf of a senior unless a senior provides otherwise in the personal directive. Seniors can decide to restrict the decision making authority of their agents to specific issues or areas by saying so in the personal directive. Agents cannot make decisions in a number of critical areas unless a senior has given them the clear authority to do so in the personal directive. An agent cannot, for example, authorize psychosurgery, consent to the non-therapeutic sterilization of seniors or the transplantation of a senior's organs or tissue unless the personal directive says the agent can do these things.
In making a decision for a senior, agents must try to step into the shoes of the senior and make the decision the senior would make if she were competent. Agents are required to consult the maker of the personal directive before they make decisions. They are also required to follow any instructions contained in a personal directive which are relevant to the situation. If there are no clear instructions which apply to the situation at hand they must make the decision they believe the senior would make based on their knowledge of the senior's values, beliefs and wishes. If the agents do not know the senior's values, beliefs and wishes, they must make the decision that they believe to be in the best interests of the senior.
The Personal Directives Act requires agents to keep a record of the decisions
they make on behalf of seniors. This record must be maintained during the period of time
that the senior lacks capacity and for at least two years after the agent's decision
making authority ends and can be requested by the senior, the senior's lawyer and others
involved in making decisions for the senior. Agents may also provide a copy of the record
to others if they think it is in the best interests of seniors to do so. However, a senior
may restrict access to this record by including a provision to this effect in the personal
directive.
Are decisions made by agents subject to review?
Decisions made by agents are not automatically subject to review. However, seniors can build a review process into a personal directive. As well, seniors and others may ask the Court of Queen's Bench to review a decision made by an agent by making an application to the Court. The Court has the authority to revoke, confirm or change a decision made by an agent and make any other order it considers appropriate that is not inconsistent with a personal directive.
When does an agent's authority to make personal decisions for a senior end?
It can end in a number of different ways. An agent's authority ends when the maker
regains and has capacity to deal with the matter over which the agent has authority. It
also ends when the personal directive is revoked, the maker dies, the Court appoints a
guardian to take over the agent's decision-making authority or determines that the entire
personal directive or the part concerning the agent is no longer valid. An agent can also
decide that he no longer wants to act as the maker's agent and voluntarily relinquish
decision-making authority.
What are the responsibilities of service providers in relation to personal directives?
Under law, doctors and other service providers must obtain the consent of their patients or clients before they provide services to them. However, when a client or patient lacks capacity to provide consent and a personal directive is in effect, the service provider must be guided by the contents of the personal directive as well as the Personal Directives Act. It is therefore advisable for service providers to ask all their patients or clients whether they have prepared personal directives and to discuss the contents of personal directives with them. It is also advisable for seniors to tell their doctors and other service providers that they have a personal directive and to provide them with copies of it.
Service providers must carefully read and review the contents of personal directives. If the client or patient has designated an agent or agents to make decisions for them concerning the provision of a particular service, the service provider must follow any clear instructions they provide. Service providers must check the identity of agents and ensure that they have the authority to make the decision in question before acting on their instructions. If the personal directive does not name an agent to make decisions for the maker or the agent designated in the personal directive is unable or unwilling to make a personal decision or cannot be contacted, the service provider must follow any clear instructions in the personal directive relating to the decision in question. It is up to the service provider to make every reasonable effort to contact and obtain instructions from agents named in a personal directive. In cases where an agent has not been designated and the personal directive does not contain any clear or relevant instructions the service provider must make every reasonable effort to contact the maker's nearest relative to let them know what is happening. If the nearest relative cannot be contacted, the service provider is required to make every reasonable effort to contact the maker's legal representative. If none of the maker's legal representatives can be reached the Public Guardian must be contacted. Service providers must also do this in cases where an agent has been designated but the agent cannot be contacted or is unable or unwilling to make the personal decision.
Despite the fact that a determination of incapacity has been made, service providers have a duty to continually re-assess the capacity of their patients or clients each time they intend to provide a personal service to them. If a service provider believes that the patient or client continues to lack capacity they can provide the personal service in accordance with the instructions provided in the personal directive and the requirements of the Personal Directives Act. However, if the service provider believes that the client or patient has regained the capacity to make personal decisions, the service provider must notify the agent before acting on the client or patient's instructions. If the agent has no objection, the service provider can act on the patient or client's instructions and provide the service in question. If the agent objects, the service provider cannot provide the service unless the Court supports the service provider's view that the patient or client is competent. The patient or client, the service provider or any other person can apply to Court and ask the Court to make a determination on this issue.
As noted earlier, physicians can provide medical services without obtaining the consent
of a patient in order to save the life or preserve the health of the patient. The Personal
Directives Act also gives health practitioners the authority to provide emergency
medical services without obtaining consent in cases where the patient has made a personal
directive but the personal directive cannot be located, does not designate an agent or
provide clear instructions or the person designated as the agent is unable or unwilling to
make the decision or cannot be contacted.
Can agents and service providers be held liable for mistakes they make carrying out their duties and responsibilities?
Under the Personal Directives Act, agents and service providers cannot be held
liable if they act in good faith and in a reasonable manner in attempting to fulfill their
responsibilities. They also cannot be held liable if they acted in good faith in following
the instructions contained in a personal directive without knowing that the maker had
changed or revoked the personal directive or revoked the authority of the agent.
What can seniors do if they have concerns about the way a personal directive is being interpreted or administered?
They can refer the matter to their local Public Guardian's office. The Public Guardian
is responsible for administering the Personal Directives Act. They can also apply
to Court and ask the Court to make a determination regarding the validity of a personal
directive, the capacity of the maker, the authority of an agent as well as other matters.
Do seniors need to consult a lawyer when they prepare personal directives?
No. Though it may be advisable to consult a lawyer or have a lawyer draw up a personal directive in order to ensure that your wishes and choices are clearly expressed, it is not necessary to do so in order to prepare a valid personal directive. The Public Guardian's office has prepared a number of guidebooks to help people prepare personal directives. This material contains a number of models seniors can follow in drawing up their own personal directives. As well, a number of senior's organizations in Alberta help seniors prepare personal directives. Your local Public Guardian's office can tell you which organization in your area provides this service.
Seniors and the Law: New Release
Written by Anna Pellatt, LL.M., Seniors and the Law: A Resource Guide provides
an overview of issues which face elders in Canada. Written in plain English in a question
and answer format, it contains practical/ legal information and is an essential tool for
every one including seniors, their friends, caregivers, relatives and advocates. It
includes a glossary and a list of related agencies and resources. It is 160 pages long and
was completed in 2000.
Topics include:
*background information about seniors
*elder abuse: criminal justice issues, restraining orders, protection orders, Family
Violence Protection Act, abuse of seniors in institutional care, suing the abuser, and
financial abuse
*mental health and competency issues: right to make treatment decisions, guardianship and
trusteeship, personal directives, enduring powers of attorney
*consumer protection issues
The Alberta Civil Liberties Research Centre is supported by a grant from the Alberta Law Foundation. The printing and dissemination of this handbook is made possible through a grant from the Family Violence Initiative of Justice Canada, as administered by the Public Legal Education Network of Alberta.
Staff and Volunteers
We have been busy these past few months. First, we released our report Seniors and the Law: A Resource Guide, prepared by contractor Anna Pellatt. Edith Krawchuk graduated from law school and finished working for the Centre as a part time research assistant. She is articling in Edmonton. Good luck, Edith! Pamela Dos Ramos continues to work as a contractor to assist with the Newspaper Project. We have a new Human Rights Educator, Tracey Maksymetz. For more information, see below. Hina Thaker and Mandy Sandhu have joined us this summer as our summer legal research assistants. We are very pleased to have their assistance!
We are fortunate to be working with excellent volunteers for the last few months
including Stephanie Garrett, Tyler Lord, Megan Klein, Erika Ringseis, Jennifer
Francis, Susan Fisher, Shelley Reid, Rhea Castillo, Jan Goodwin, Eric Goodwin,
Colleen Huston, Denise Gavan, Shannon Baker, Louise Aurigemma and Christine Nugent.
Thanks!!! Linda McKay-Panos
Alberta Civil Liberties Association's Column
The Alberta Civil Liberties Association is a volunteer, advocacy-oriented organization which speaks out on current civil liberties and human rights issues.
Protection of Privacy
by Stephen Jenuth, President, ACLA
Every morning, my daily dose of e-mail seems to contain the following:
"ALL remaining Original Cam stock MUST GO that's right The Original Cam for only $49.99*! The Closet Deal includes: The Original Cam, video sender transmitter and receiver with power supply. Inventory is limited so, act now! This is an AWESOME offer! Don't miss out! Get the complete Cam camera kit for only $49.99. Click on the link below and order NOW while supplies last!"
For only $ 49.95 US, I too can have a remote camera to remotely view what is happening elsewhere. All in an incredibly small package. Just perfect for spying on neighbours. Apparently, that is exactly what an Edmonton landlord thought when he installed a similar camera in his female tenant's room to transmit the pictures on the internet.
Albertans in their own homes have limited protection against such acts. The landlord may be criminally liable for interference with the tenant's lease; and the tenant may have a right to sue for damages or abatement of rent. But that protection is very limited and based not on a right to privacy, but on the protection of property. If the tenant was simply a guest staying in a second bedroom, no protection would exist under Alberta law. The guest simply does not have any "property" interest in the second bedroom.
These invasions of privacy go far outside of the bedroom. If you look carefully around, surveillance exists in virtually every part of our lives: when we go to the bank, when we stand on the LRT platform, when we walk through the University, when we use public washrooms, when we enter buildings or simply walk down the street. All in the name of some nebulous requirement to maintain order or safety. And all without any protection for the privacy of those being monitored. For some reason, Albertans seem to unquestioningly accept these intrusions in our privacy. We seem to blindly hope that our images will not be misused, or used for improper purposes. Or purposes which are not justified.
The time has come for legislation to limit the use of such surveillance by placing
limits on the type of surveillance permitted, the use for which the images are made, and
the length of time such images are permitted to be held. And to protect individuals from
infringements of the fundamental right of privacy.
Human Rights Education Project Update
by Tracey Maksymetz, Human Rights Educator
What's black and white and read all over?
The Rights Angle: Human Rights Education Using the Newspaper project has received rave reviews from several schools in Calgary. One free copy of the teacher's manual was sent to each secondary school in Calgary. In addition, Pamela Dos Ramos, Vilma Dawson (from the Committee on Race Relations), Linda McKay-Panos and I gave presentations to teachers in April and May about the project with the hope that teachers will include some or all of the materials in their curriculum starting in the next school year.
Some of the comments received from teachers include:
"Very interesting...some activities/materials excellent for our students"
"Informative & lively; interactive"
"Excellent resource & raises awareness through example/discussion/education;not preaching"
"People (teachers) need the opportunity to hear this!"
"It is topical /lots of good data in the teacher pages"
"Good food for thought"
"Important for teachers to incorporate these into classrooms"
"It integrates well with various curricula"
"We should do more awareness promotion of the human rights to students"
The plan is to continue the presentations in the fall when school begins again. A copy
has been sent to Alberta Learning in the hopes that it will be included in the school
curriculum. Please contact the Research Centre if you are interested in purchasing a
binder or if you would like someone to come out and give a presentation to your class or
organization.
Just What Am I Doing?
I have found myself immersed in hate literature, liberal democratic theory, pornography, the freedom of the Internet and campus speech codes, among other issues, while working on the latest Human Rights Education project. The project concerns Freedom of Expression and its antithesis - Censorship, and explores tough issues in the balancing of rights between citizens and government. The project will yield a teacher's manual, two student guidebooks, and a video aimed at high school and university students, which will lead to an understanding of people's rights and responsibilities in a democratic society. It will also lead to an awareness of the complexity of the issues, and the responsibility of citizens in deciding what kind of society they want to live in. The project proves to be challenging, as each issue leads to debate, differing opinions, and ultimately, no answer unless the law in Canada has spoken on a particular issue. If you are interested in learning more about this exciting project, please contact the Research Centre.
The next project is on Children and War, and what refugee and immigrant children may
have experienced before they found themselves in Canada. The purpose of the project is to
educate students about some of the hardships and perhaps devastations that some students
have experienced before they become Canadians. The ultimate goal is to educate and thus
create understanding and acceptance in the schools.
ACLRC Hires New Human Rights Educator
We have a new Human Rights Educator! Tracey Maksymetz grew up in St. Albert, Alberta and attended the University of Alberta from 1985 to 1994, where she obtained both a Bachelor of Commerce and a Bachelor of Laws degree. After graduating from law school in 1994, she moved to Vancouver where she articled with a litigation firm and then with the Immigration and Refugee Law Clinic at the Legal Services Society of B.C. She was called to the B.C. Bar in 1995. She then practiced refugee law for one year in Vancouver, before accepting a position in Japan to teach English. She lived on the southern island of Kyushu, and taught English to both junior high and high school students. After returning to Canada from Japan, Tracey studied for the Alberta bar exam, and was called to the Alberta bar in 1999. She then practiced Aboriginal law before joining the Research Centre.
Tracey's interest in human rights stems from a trip to China in 1989 during which she witnessed student demonstrations in Tiananmen Square. She then pursued this interest in law school, in practicing refugee law, and through her volunteer work. She has volunteered for Student Legal Services at the University of Alberta in the Legal Education clinic at the Women's Emergency Shelter; West Coast LEAF (the Women's Legal Education and Action Fund) as the newsletter editor; the Hispanic Catholic Mission in Vancouver where she provided pro bono legal advice; and MOSAIC, where she taught ESL to newly arrived refugee claimants. -Linda McKay-Panos
Video Review
by Tracey Maksymetz, Human Rights Educator
Bengali, shelve your western plans and understand that life is hard enough when you belong here
- Rick Morrisey
This quote, of course, represents the plight of many immigrants and refugees to Canada, but has a heightened meaning for a specific group of foreign workers, namely, domestics and nannies. The NFB video, When Strangers Reunite, explores the heart-wrenching experiences of women who came to Canada from the Philippines under the Immigration Act's Live-In Caregiver Program.
The video is without aggression and anger as it eloquently reveals the lives of Fay, Maricel and Roderick, the son of a domestic worker. Each person has a different story, yet ultimately the stories are the same: separation, loneliness, reunification, and re-building.
Driven to work abroad in an effort to support their families back home, the women seem to survive on low wages for long hours of work, loneliness, memories and patience. They must live with their employers for two years before they can apply to have their families join them, and even then the bureaucracy in the Immigration department can delay the process for years.
We enter each person's life as they reunite with their families. We are granted the privilege of knowing the innermost thoughts and feelings of the women, husbands and children as they cope with the difficulties of reuniting after many years and with the challenges of living in a foreign land.
After watching the video, I was amazed at how unaware I had been. The video had briefly addressed the situation in the Philippines, and now I crave knowledge about the colonization and foreign ownership of resources there. I also question what Canada's role is in perpetuating these problems through our immigration policies. I also wonder what the international community is doing or should be doing to address this situation.
This video is excellent. Anyone interested in better understanding domestics' and nannnies' experiences in Canada and the difficulties they face is encouraged to borrow the video from our Human Rights Education library, or to purchase it from the National Film Board of Canada.
This video can be borrowed from the Research Centre, or you can call National Film Board Videos, 1-800-267-7710 to purchase your own copy.
The Alberta Civil Liberties Research Centre appreciates the contributions of volunteers and donors, and the support of agencies that provide grants to the Centre, including:
*The Alberta Law Foundation
*The Kahanoff Foundation
*The United Way of Calgary and Area
*The Sheldon M. Chumir Foundation for Ethics in Leadership
*Department of Canadian Heritage, Government of Canada
*Status of Women Canada
*Human Resources Development Canada (S.C.P.)
*Alberta Human Rights, Citizenship and Multiculturalism Education Fund
*Calgary Community Lottery Board
*Alberta Advanced Education and Community Development (S.T.E.P.)
Centrepiece
c/o Alberta Civil Liberties Research Centre
University of Calgary Faculty of Law
2500 University Drive N.W.
Calgary, Alberta T2N 1N4
Publisher and Editor: Linda McKay-Panos
Regular contributors: Linda McKay-Panos, Tracey Maksymetz
Centrepiece is the newsletter of the Alberta Civil Liberties Research Centre. The views expressed in Centrepiece are the opinions of the author, and not necessarily the views of the Research Centre, its Board, staff, volunteers or funders.
The Alberta Civil Liberties Research Centre holds copyright to all material appearing in Centrepiece unless otherwise indicated. Reproduction of Centrepiece articles to which the Centre holds copyright is permitted, so long as the author and the source are acknowledged. Please contact the Research Centre if you wish to obtain permission to reproduce any other material.
Subscription rates are $10.00 for one year. (Complimentary subscriptions for donors and volunteers.) Please enclose payment with your order.
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