When Living At Home Is No Longer an Option

Within a personal directive, a person appoints an agent to make personal decisions, on their behalf after they lose mental capacity.

Agents of mentally incapacitated adults are required to act in the best interests of the adult even if those decisions might go against the adult’s expressed wishes.

This occurred in the recent case AW v. PR, 2021 ABQB 804. AW and PR were appointed as co-agents pursuant to a personal directive. The co-agents could not agree on where the adult should live. Both AW and PR applied to the Court to remove the other a co-agent.

The adult was 82 years old diagnosed with dementia. Her care team recommended she live in a long-term care facility because she required 24-hour care.

One of her agents, PR, disagreed with the assessment, removed the adult from the hospital where she had been residing, against medical advice and contrary to the terms of a Court Order, and attempted to care for the adult in his home, despite that PR was 88 years old, resided in a rural area where home care was not easily available and had problems with his mobility.

In defense of his decision, PR noted the adult, in her personal directive, expressed that she wished to live at home. The Court noted the adult in her personal directive qualified her wish to remain in her own home with the phrase “as long as possible.”

The Court removed PR as a joint agent for the adult and ordered PR allow the adult to be removed from his home and be moved into a care facility or home where the adult would receive the 24-hour care recommended by the adult’s care team.

In its reasons, for removing PR as the adult’s co-agent the Court stated:

“…I agree with AW that PR must be removed as a co-agent under the relevant documentation. Although, PR says that he has removed the Represented Adult from care because he loves her and wants to respect her wishes to live at home, he has demonstrated an inability to appreciate and make the necessary decisions with the best interests of the Represented Adult in mind, no matter how difficult these decisions may be…”

This case demonstrates the importance of an agent acting under a personal directive to make decisions in the best interest of the adult, even if the adult has expressed contrary wishes in the personal directive.







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