Living wills: FAQs
CBC News Online | March 22, 2005
What is a "living will"?
A "living will" contains your written instructions about what level of medical treatment you want in the event that you are unable to express your wishes verbally. For instance, you may want all possible measures taken to keep you alive or you could instruct that nothing be done to keep you alive.
You could also be very specific about what treatments you want, depending on the condition you are in. A living will would also specify whether you wanted to donate your organs when you die.
Living wills enable people to make their own decisions, and ensure that others are aware of these decisions.
Are living wills legal in Canada?
The phrase "living will" is not a legal term in Canada.
Actually, the phrase "living will" is not a legal term in Canada. But it is used to describe the legal directives each province sanctions that deal with your medical care wishes should you be unable to communicate them.
Do I need a living will if I have a last will and testament?
Yes, your last will and testament deals with matters of property. Your living will deals with your health and personal care. Your last will and testament only kicks in after you die. Living wills are used during life and may be modified by the declarant whenever circumstances change.
How does a living will work?
Through a properly drafted legal document, you name someone to carry out your wishes for your medical care in the event that you are unable to make those decisions yourself. Again, you can be very specific as to what treatments you would agree to and which ones you don't want.
Having your wishes on paper can take the pressure off family members to make difficult decisions regarding your care.
The document can be drafted by a lawyer or you could do it yourself, as long as you follow all the steps that make such documents legal in your province or territory of residence.
It's also a good idea to review your living will with your doctor. The doctor can ensure that you have understood the choices in the living will and that the instruction directive is suitable for your own health situation.
Like a regular will, it's a good idea to update a living will from time to time. Advances in medical science could make today's heroic measures tomorrow's routine procedures.
A living will sounds like a power of attorney. Is it the same thing?
It is a type of power of attorney. Powers of attorney vary from province to province. For example, in Ontario there are three kinds:
- Continuing power of attorney for property: covers your financial affairs and allows you to name a person to act for you especially if you become mentally incapable.
- Non-continuing power of attorney for property: covers your financial affairs but can't be used if you become mentally incapable. You might need this if you want someone to look after your financial affairs if you're away from home for an extended period or if you own a property with someone and want that person to handle the sale, especially if you're going to be away.
- Power of attorney for personal care: allows you to appoint someone else to make your personal decisions such as housing and health care if you can't communicate. It's also called a health-care proxy and a durable power of attorney for health care.
How are living wills handled across the country?
In British Columbia, the Representation Agreement Act came into effect in 2000. It allows you to appoint someone to make financial, legal, health and personal care decisions for you if you can't. The Representation Agreement addresses all powers of attorney health care, financial and property in one document.
A representation agreement has no effect unless it is registered by the registrar in accordance with the regulations in the act. However, a proxy may exercise the authority in the agreement even before it is registered if it is necessary to protect the patient's interests.
It's your choice: guide to making a Representation Agreement [pdf format]
The Personal Directive Act has been in effect since 1997. A personal directive may be made by anyone who is at least 18 years of age and who is presumed to understand the nature and effect of the personal directive.
The personal directive must be in writing, dated and signed by a witness. There are restrictions on who can be a witness.
The Personal Directive Act
Guidelines for writing personal directives
A directive may be made by any person of 16 years of age or older who has the capacity to make a health-care decision, which is defined as the ability to understand relevant information about a proposed treatment, to appreciate the reasonably foreseeable consequences of making or not making a health-care decision, and to communicate a health-care decision on a proposed treatment.
A directive is not valid unless it is in writing, dated and signed by the person making the directive.
Health Care Directive and Substitute Health Care Decision Makers Act [pdf format]
Health Care Directives - FAQs
Living wills are called health care directives. A person is deemed to have the capacity to make a health care directive if he or she is able to understand the information that is relevant to making a decision and is able to appreciate the reasonably foreseeable consequences of a decision, or of lack of decision.
People who are 16 years of age or older are presumed to have the capacity to make a health care directive, unless they are proven not to have capacity. But you have to be at least 18 years old to be appointed a proxy the person making the health-care decisions for another.
The Health Care Directives Act
Health Care Directives - FAQs
In Ontario, a living will is called a power of attorney for personal care. You can appoint someone to act on your behalf, as long as you understand that person has genuine concern for your welfare and may have to make decisions on your behalf.
The person making the power of attorney for personal care and the person appointed to be the proxy, must both be at least 16 years old. But you can't appoint someone to make your decisions if they're paid to provide health care, residential or social services to you.
Powers of attorney and living wills - FAQs [pdf format]
The term here is mandate in anticipation of incapacity. The person giving the mandate (the mandator) may name another person (the mandatary) to make decisions on his or her behalf, including health and personal care decisions, in the event that he or she becomes incapacitated. It's assumed the mandatary will act in the mandator's best interests and will take into account the person's expressed wishes.
The mandate, given by an adult at least 18 years of age, can be drafted by a notary or be drawn up in the presence of two disinterested witnesses who attest to the fact that the person is capable of entering into the agreement.
Similar to Ontario: a living will is called a power of attorney for personal care.
Infirm Persons Act
In Nova Scotia, under the Medical Consent Act, you can authorize any person at least 18 years of age to act on your behalf regarding medical treatment as long as that authorization is in writing, signed by you and witnessed by someone who is not the person you're appointing, or that person's spouse.
The act does not authorize the proxy to make personal care decisions, and it does not allow you to appoint more than one proxy.
Medical Consent Act
Prince Edward Island
Prince Edward Island's Consent to Treatment Act allows you to appoint someone 16 years or older to act on your behalf. A living will here is called a directive. A directive may stipulate treatment, procedure or medication and/or circumstances in which the patient shall be permitted to die a natural death.
Consent to Treatment and Health Care Directives Act [pdf format]
Newfoundland and Labrador
In Newfoundland and Labrador, living wills are called advance health care directives, and the proxy is called a substitute decision maker. You have to be at least 16 to be considered competent to draw one up. The person you appoint to make decisions for you must be at least 19.
The Advance Health Care Directives Act only allows the proxy to make decisions about health care. Personal care decisions are not covered by an advance health care directive.
The Advance Health Care Directives Act
In the Yukon, a living will is called an enduring power of attorney. The patient must be an adult when the paperwork is drawn up, and must be mentally capable of understanding the nature and effect of the document, which must be in writing, dated, and signed by the patient.
If the patient is physically incapable of signing the enduring power of attorney, another person may sign on the patient's behalf in the presence of the patient and a lawyer, and under the direction of the patient.
But you can't sign for the patient if you're the proxy or the spouse of the proxy or the lawyer who is supposed to be present at the signature or the lawyer's spouse.
There's no getting around it in the Yukon a lawyer must be involved in the process.
Enduring Power of Attorney Act [pdf format]
An enduring power of attorney forms a living will in the Northwest Territories.
Powers of Attorney Act [pdf format]
How will medical staff know I have a living will if I'm brought into a hospital after an accident?
If you opt for a living will, it's not a bad idea to carry around a card that you can tuck into your purse or wallet. It would be an abbreviated version of your living will. If you're unconscious or unable to speak for yourself, anyone examining your wallet or purse would find the card indicating you have appointed someone to make medical decisions on your behalf.
You should also distribute copies of your living will to key people like family members, your doctor and lawyer, and especially the person you want to act on your behalf.