Personal Directive Vs. A Will

Personal Directive Vs. A Will

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A Will determines how a person’s property will be divided upon death, and a personal directive grants authority to an individual to make decisions on another’s behalf regarding non-financial matters before death.

Planning for the unexpected, such as death and mental incapacity, is one of the best investments you can make.  During times of crisis, this investment will simplify a very stressful and often unknown process for family members and loved ones.

Importance of a Will

A Will is a legal document that determines how a person’s property (the “Testator”) will be divided upon that Testator’s death. A Will often names an executor to carry out the Testator’s instructions, as well as a guardian to care for any children. Writing a Will is usually far simpler than most people realize, and doing so will help family members and loved ones deal with property according to the person’s wishes.

Any property that is not dealt with in a Testator’s Will, will be distributed in accordance with the Wills and Succession Act. However, this scheme can be difficult and will often yield results not desired by a potential Testator.

Importance of a Personal Directive

Unlike a Will, which takes effect upon death, a personal directive is a written document that gives authority to a person (the “Agent”) to make decisions on behalf of another person (the “Maker”) for any non-financial matters related to the Maker while alive. The scope of authority includes decisions regarding the health and medical treatment of the Maker.

Personal directives are designed to take effect when the Maker becomes incapable of making certain personal life decisions, usually while in contemplation of death or when quality of life is greatly lessened. If the maker does not specify who will determine capacity, two service providers, at least one of which is a physician or psychologist, can provide a written declaration stating the Maker lacks capacity.

Subject to certain exceptions, the Agent has the same authority to make decisions on the Maker’s behalf. If the personal directive is silent on instructions, the Agent is required to make decisions that the Agent believes to be in line with the Maker’s beliefs, values, and in the Maker’s best interest. With regards to any potential liability, the Agent is not liable for any actions or omissions performed in good faith.

However, unless the following is clearly stated in the personal directive, an Agent cannot make decisions regarding:

  • Psychosurgery;
  • Medically unnecessary sterilization;
  • Removal of tissue from the Maker’s body for transplant into another person or for research; or
  • Participation by the Maker in research that offers little or no known benefit to the maker.

Overall, every person over the age of 18 should have a Will and a Personal Directive to protect themselves, as well as loved ones, from the stresses and unknown aspects of death and mental incapacity.

If you would like to learn more about Wills, personal directives, or estate planning in general, feel free to contact the lawyers at Bosecke & Associates.

If you need assistance or more information regarding Wills, personal directives, or estate planning in general, we welcome you to contact our office at 780-469-0494 or email us directly at