Personal Directive

What is a Personal Directive?

A Personal Directive, or Health Care Directive or Power of Attorney for Personal Care, allows someone, the maker, to give a person of their choice the authority to make decisions about their personal care should they become legally incapable, and to give directions to their health care providers about health care.

Decisions about personal care involve things such as where one lives, what one eats, and the kind of medical treatment one receives.

What are the different types of Personal Directives?

Each jurisdiction will refer to a personal directive as follows, each of which having an identical or similar purpose:

• Power of Attorney for Personal Care: Ontario
• Personal Directive: Alberta, Nova Scotia, Yukon
• Health Care Directive: Manitoba, Saskatchewan, Prince Edward Island
• Advanced Health Care Directive: Newfoundland and Labrador
• Enduring Power of Attorney for Personal Care: New Brunswick
• Springing Power of Attorney for Personal Care: Northwest Territories, Nunavut
• Representation Agreement: British Columbia

The above documents all have the same purpose and will be named based on the province or territory. The purpose is to name an individual to take care of the health care decisions of another individual in the event of incapacity. For example, in Ontario, the document used is called a Power of Attorney for Personal Care, and not an Enduring Power of Attorney.

What is the difference between a Personal Directive and a Power of Attorney for Property?

A personal directive or power of attorney for personal care is different from a power of attorney for property in that the instructions contained in a personal directive relate to healthcare. On the other hand, a power of attorney for property authorizes an attorney (or proxy or agent) to make financial decisions on behalf of the grantor (or maker). These financial decisions include managing bank accounts, paying bills, maintaining property, handling transactions, and more.

Is it mandatory to have a Personal Directive?

No. Having a personal directive is not mandatory. If an individual doesn't have a personal directive, family members will make decisions based on what they believe the incapacitated individual wished. Also, without a personal directive, healthcare workers need to follow the applicable law to determine from whom they can take instructions regarding the health care decisions of an incapacitated individual. In other words, consent to accept or refuse treatment will only be afforded to those permitted by law based on the hierarchy of the legislation.

What must a Personal Directive contain?

A personal directive must name the maker of the document and appoint an attorney (or agent or proxy, depending on the jurisdiction). This is the individual that will be making the health care decisions. The document should revoke a previous Personal Directive. Also, the document should list the medical treatment preferences of the maker, including life-sustaining treatments, nutrition and hydration, and other medical interventions. The personal directive may include a Do-Not-Resuscitate (DNR) Order (this means instructions not to receive cardiopulmonary resuscitation (CPR)), and instructions based on an individual's religious or cultural beliefs.

What is not allowed in a Personal Directive?

A personal directive cannot contain illegal instructions, such as medical procedures inconsistent with the law. It cannot override legislation that may apply and cannot contain clauses regarding other non-health-related instructions. There are different powers of attorney addressing instructions not related to healthcare.

Who cannot be appointed as an attorney?

Certain people are not allowed to be given the authority to make personal care decisions on behalf of the person making this document. The person making the document should not appoint anyone who provides them with "health care or residential, social, training, or support services for compensation" unless that person is also their spouse, partner, or relative. For example, any of the following people should not be named if they are paid to provide services to the maker unless that maker is also related to the grantor or is the grantor's spouse or partner:

• the grantor's landlord;
• any person who provides care for the grantor in the place where they live;
• the grantor's social worker, counselor, teacher;
• the grantor's doctor, nurse, therapist, or other health care provider;
• the grantor's homemaker or attendant.

Who can sign a Personal Directive?

An individual over the required age with legal capacity can sign a personal directive. The document must also be witnessed either by one or two witnesses depending on the province or territory. The grantor (or maker) of the personal directive must be of legal age and must have legal capacity. The required age for the Personal Directive to be valid varies from province-to-province, and is indicated below:

• Alberta: 18
• Manitoba, Newfoundland and Labrador, Ontario, Prince Edward Island, Saskatchewan, Yukon: 16
• British Columbia, New Brunswick, Nova Scotia, Northwest Territories, Nunavut: 19

Legal capacity usually refers to the grantor or maker knowing that the individuals appointed have a genuine concern for their welfare and understands that harsh decisions may need to be made.

What has to be done after a Personal Directive was signed?

After this document has been signed by the grantor (or maker), it must be witnessed.

After the personal directive is witnessed, one of the witnesses must sign an Affidavit of Execution. The Affidavit serves as evidence that the Personal Directive was properly signed before a witness or witnesses.

The affidavit must be signed in front of a commissioner of oaths and affidavits. A commissioner is a person appointed by the government to certify affidavits. A commissioner also includes a lawyer or a paralegal. This means that any lawyer or paralegal can commission the affidavit.

After the signatures have been obtained, the grantor (or maker) must store the document in a safe and secure location, such as a fireproof vault. The grantor (or maker) should also distribute copies of the document to the individuals named as attorney.

Which documents should be attached to a Personal Directive?

An Affidavit of Execution should also be attached to the Personal Directive. The Affidavit is not mandatory, but the importance of the Affidavit should not be overlooked.

The Affidavit serves as evidence that the Personal Directive was properly signed before a witness or witnesses. An affidavit should always accompany a Personal Directive.

Is it necessary to have witnesses to a Personal Directive?

Yes. Having witnesses is necessary. Depending on the province or territory, usually two witnesses are required.

Disqualified witnesses include the attorney's spouse, the grantor's spouse, a child of the grantor, or anyone under the legal age of majority. The ages of majority are as follows:

• Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, Saskatchewan: 18 years old.
• British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Yukon: 19 years old.

What are the costs involved in the finalization of a Personal Directive?

If the witnesses to the Personal Directive have signed an affidavit of execution, it needs to be commissioned by a commissioner, which will be an added fee. The amount of the fee depends on the individual commissioner's rate (around $50-$300).

Which laws are applicable to a Personal Directive?

The pieces of legislation governing personal directives and power of attorney for personal care are the following:

• Alberta: Personal Directives Act (RSA, c P-6)
• British Columbia: Health Care (Consent) and Care Facility (Admission) Act (RSBC 1996, c 181)
• Manitoba: Health Care Directives Act (CCSM, c 27)
• Newfoundland and Labrador: Advance Health Care Directives Act (SNL1995, c A-4.1)
• Northwest Territories: Personal Directives Act (SNWT 2005, c 16)
• Ontario: Substitute Decisions Act (SO 1992, c 30)
• Prince Edward Island: Consent to Treatment and Health Care Directives Act (RSPEI 1996, c 10)
• New Brunswick: Enduring Powers of Attorney Act, SNB 2019, c 30
• Nova Scotia: Personal Directive Act (SNS 2008, c 8)
• Saskatchewan: Health Care Directives and Substitute Health Care Decision Makers Act (SS 2015, c H-0.002)
• Yukon: Care Consent Act (SY 2003, c 21)
• Nunavut: Powers of Attorney Act, SNu 2005, c 9

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