By Tatum Sabourin and Zachary Murphy-Rogers

Advance planning is becoming an increasingly important priority for Canadians, especially in the context of estate and trust planning. An avenue that tends to get less attention is planning for health care decisions during one’s lifetime. Giving effect to these decisions can become complicated (or impossible) when an individual loses the capacity to understand the consequences of their choices.

Advance Directives

An advance directive is a legal document that outlines one’s health care wishes in the event that they lose the required mental capacity to consent to treatment. It allows individuals to outline decisions in advance, either consenting to or refusing particular care. Having this document in place is especially important for those with strong preferences about interventions such as tube feeding or life-sustaining machines. While individuals with terminal illnesses may view advance directives as a priority, they are often prepared by healthy individuals who simply want to maintain autonomy over their choices.

It is important to note that advance directives only take effect if a patient is legally incapable of consenting at the time a medical decision needs to be made. Since capacity can fluctuate, an advance directive that applies at one point in time may not apply at another. Moreover, health care providers can only follow a request in an advance directive if it reflects the exact medical decision needing to be made. This makes wording of the document critically important. A lawyer can help draft the advance directive to increase the likelihood that it will apply or be useful to one’s medical team, and doctors can be consulted to discuss medical decisions that might arise during end-of-life care. These steps can help strengthen an advance directive, although its ultimate applicability depends on how health care providers interpret its terms.

Why They’re Valuable – and Why They’re Not Perfect

Advance directives are the strongest legal mechanism in B.C. for recording specific health care directions. Still, their limitations should be kept in mind. One concern worth noting is that unlike in the U.S., Canada does not have a centralized registry for advance directives to ensure they are easily accessible when needed. Individuals are well advised to share theirs with their family doctor, family or friends, or to upload it to Nidus, a non-governmental registry available to British Columbians.

One notable advantage is that advance directives are more durable in Canada than in other jurisdictions. For example, in the Netherlands, health care providers can override instructions in the advance directive if they believe they have good reason to do so. In Canada, doctors have a legal duty to respect patients’ health care decisions as part of the principle of informed consent, even if that hastens the patient’s death (Rodriguez v British Columbia (Attorney General), 1993 CanLii 75 [SCC]). As long as the care requested or refused is legal, the advance directive must be followed.

A common question on this topic is how decisions are made when someone has both an advance directive and a representation agreement. While representatives often play a vital role in health care decision-making, their authority is limited by instructions in an existing advance directive. If the instructions directly apply to the medical situation at hand, they must be followed. However, when the advance directive does not provide specific guidance for a situation, the representative has the authority to step in and make real-time decisions. Having both legal documents in place is beneficial; the advance directive protects clearly stated wishes, while the chosen representative is empowered to act in situations the advance directive does not explicitly address. This layered approach allows for flexibility in the face of unpredictable medical scenarios.

Medical Assistance in Dying (MAID) Cannot be Requested

Many clients ask about including a request for medical assistance in dying (MAID) in their advance directive. This is especially relevant for people with progressive illnesses such as dementia, who expect to lose capacity. While MAID has been legal in Canada since 2016, it cannot be requested in an advance directive. In Quebec, advance requests for MAID are permitted for individuals with conditions that lead to incapacity. However, this is handled through a separate process and is not part of an advance directive. The main barrier to incorporating MAID in an advance directive is that individuals must be able to consent to MAID at the time it is administered. This creates a conflict; advance directives apply only after someone loses capacity, while MAID requires active consent. That said, Bill S-231 is currently being debated, which proposes changes to the Criminal Code to permit advance requests for MAID in anticipation of future incapacity. This federal legislative change has the potential to redefine the rules around requests in advance directives.

Takeaway

Advance directives empower individuals to maintain autonomy over their health care choices, even when they lose capacity to advocate for themselves. They are a valuable tool for anyone with strong preferences about treatment. Taking the time to prepare an advance directive can provide comfort and a sense of control in the face of life’s uncertainties.

If you have any questions about advance directives or other advance planning documents, please reach out to any member of our Estates & Trusts Group.