A New Incapacity Planning Tool: The Advance Directive



In 2011, the Health Care (Consent) and Care Facility (Admission) Act (the “Act”) was amended to provide adults with the opportunity to plan for their incapacity through a new tool called an “advance directive”. An advance directive is a written document that contains an individual’s instructions in respect of the health care treatments that they consent (or refuse) to receive in the future. The directive becomes effective once the individual is no longer capable of making their own independent decisions relating to health care.

Requirements for an Advance Directive

In order for an advance directive to be legally binding, the requirements of the Act must be met. The directive must be written, signed by an adult with capacity, and witnessed by two witnesses (unless one witness is a lawyer or notary). A witness cannot be someone who provides health care, personal care, or financial services to the adult for compensation, or the spouse, child, parent, employee, or agent of such person. The advance directive must also state that the adult knows that a health care provider may not provide any health care for which the adult refuses consent in the advance directive and that a person may not be chosen to make decisions on behalf of the adult in respect of any health care for which the adult has given or refused consent in the advance directive.

The Act outlines certain situations where an advance directive will not be followed. These include situations where:

  • the advance directive is so unclear that it cannot be determined if the adult has given or refused consent to the health care;
  • the advance directive was made prior to changes in medical knowledge, practice, or technology that might substantially benefit the adult, unless the directive expressly states that it applies regardless of changes in medical knowledge;
  • the adult’s wishes, values, or beliefs in relation to the health care decision have significantly changed since the advance directive was made.

Impact on Representation Agreements and Living Wills

Before the introduction of advance directives, the options for individuals wanting to plan for their incapacity were to create a representation agreement pursuant to the Representation Agreement Act (B.C.) or to create a non-binding statement of wishes, often called a living will. A representation agreement authorizes a representative to give consent or refuse consent to specified types of health care on behalf of another individual. A living will outlines directions relating to health-care decisions to be considered by a substitute decision maker that is asked to make decisions on behalf of an adult without capacity (which may occur where no representation agreement is in place). An advance directive is different from a representation agreement and a living will because it provides instructions to be followed directly by the health care provider, without any input from a substitute decision maker.

The introduction of the advance directive does not affect existing representation agreements. If an adult has both an advance directive and a representation agreement, the representation agreement will generally take precedence over the advance directive. The advance directive is not effective in respect of any instruction that relates to a matter over which the adult’s representative has decision-making authority, unless the representation agreement provides that the instructions in the advance directive can be carried out without the representative’s consent. If the advance directive is not referred to in the representation agreement, the advance directive will serve as pre-expressed wishes that will guide the representative’s decisions.

If an individual already has a living will, the living will is deemed to be an advance directive (and therefore legally binding) if it is made and executed in accordance with the formalities that apply to advance directives in the Act. Based on our experience, most living wills formerly made under British Columbia law will not include the statements required to be included in an advance directive and may not meet the other formalities required of an advance directive.

Other Considerations

An advance directive is useful for an individual wanting to give specific instructions about the level and type of medical treatment they want in situations where they may become incapable of making these decisions themselves. For example, it may be useful for a patient embarking on a long-term treatment plan for a serious disease to communicate specific directions about that plan to their care provider. An advance directive may also reduce the stress placed on an individual’s representative or close family members, who may otherwise have to make these decisions without knowing the individual’s wishes. However, an advance directive does not eliminate the need for a representation agreement since it will be difficult or impossible to predict and give instructions relating to all types of health care decisions that may come up.

Individuals who decide to prepare an advance directive should take the time to periodically review, reconsider and potentially update their directions as their wishes relating to health care may change, and the availability of new technology and medical treatments may impact their health care decisions.