Planning for Incapacity with an Advance Directive


The recent BC Supreme Court decision of Ng v. Ng demonstrates how difficult it can be to make health care decisions on behalf of a family member who has become incapacitated. Mr. Kenny Ng suffered a severe brain injury as a result of a motor vehicle accident and for 7 years lived in a minimally conscious state. His wife, Lora was appointed as his committee and made the difficult decision to instruct Kenny’s caregivers to remove him from life support. Kenny’s family disagreed with the decision and sought an order rescinding Lora’s appointment as Kenny’s committee. The Court dismissed the appeal on the basis that Lora’s decision to remove her husband from life support was a medically appropriate decision and was made in accordance with her appointment as committee. Sadly, the situation in Ng v. Ng is not that unusual. Courts in other jurisdictions have dealt with similar issues recently, such as the Rasouli case recently heard by the Supreme Court of Canada and discussed on the Toronto Estate Law Blog here.

These cases are a reminder of the importance of planning for incapacity as part of an estate plan. One way of doing this is through an advance directive, which is a written document containing an individual’s instructions in respect of the health care treatments that they consent (or refuse) to receive in the future. The Health Care (Consent) and Care Facility (Admission) Act sets out the requirements for a valid advance directive and requires, among other things, that the directive be written, signed by an adult with capacity, and witnessed by two witnesses (unless one witness is a lawyer or notary). An advance directive is distinct from a representation agreement because it provides instructions to be followed directly by the health care provider, meaning that the person appointed to make health care decisions on behalf of the individual does not have any input or involvement in the matters covered in the advance directive. This type of planning ensures that your wishes relating to your end-of-life care are followed, and reduces the stress placed on family members, who are often the ones left making these difficult decisions.