Advance Directives FAQ
How is a living will or durable power of attorney for health care different from a traditional will or traditional power of attorney?
What type of advance directive should I make?
Why would I want to make an advance directive?
Do I need a lawyer to write an advance directive?
Do I need to go to a physician to write an advance directive?
How do I write an advance directive?
What can I ask for in an advance directive?
Now that I have an advance directive, what do I do with it?
Can a minor write an advance directive?
What will happen if I don't have an advance directive?
As a healthcare provider, do I have to follow a patient's advance directive?
As a healthcare provider, what do I do if I think that the patient's proxy is not respecting the patient's prior expressed wishes, or is not acting in the patient's best interests?
As a healthcare provider, how do I know that the patient has not changed his or her mind about treatment?
As a healthcare provider, what do I do if the patient's instructions in his or her advance directive are vague or ambiguous?
Where do the provinces stand on advance directives?
Where does the federal government stand on advance directives?
Where do the courts stand on advance directives?
Where do healthcare providers stand on advance directives?
Where can I find more information about advance directives?
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How is a living will or durable power of attorney for health care different from a traditional will or traditional power of attorney?
A "living will" or "durable power of attorney for health care" contains instructions about your health care and comes into effect when you are still alive but no longer competent to make health care decisions.
By contrast, a traditional power of attorney operates only while you are competent and is relevant only to decisions relating to property. A traditional will contains instructions about how your property is to be divided and comes into effect only when you are dead. |
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Why would I want to make an advance directive?
Commonly expressed reasons for wanting to have an advance directive include:
- to maintain control over your own health
- to remove the burden of decision-making from family and healthcare providers
- to get you to think about, reflect on, and talk about your future health care choices with your family, friends and healthcare providers. Conversations about death and serious illness can be difficult to start, and the process of completing an advance directive can help start these conversations.
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Do I need a lawyer to write an advance directive?
No. You can write the directive without a lawyer. However, it is a good idea to have a lawyer with experience in this area read your directive to make sure that what you have written is legally valid. |
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Do I need to go to a physician to write an advance directive?
No. You can write the directive without a physician, but again it is a good idea to discuss conditions, treatments, and any other issues with a physician to be sure that the decisions you are making about your future care are well-informed. |
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How do I write an advance directive?
It is important to check the legislation in your province to see if there are specific requirements for writing an advance directive.
The Joint Centre for Bioethics at the University of Toronto has a sample available to download on their website.
Another useful resource is Let Me Decide, an easy-to-follow, plain language advance directive written by Dr. Willie Molloy, a professor of medicine at McMaster University. |
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What can I ask for in an advance directive?
You can refuse and request the same things you could if you were competent to make decisions about your health care. For more information on the kinds of treatment you can refuse, please read Competent Refusal. For more information on what you can request, please read Unilateral Withholding. |
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Now that I have an advance directive, what do I do with it?
When you have taken the time to write your directive, it is important to share the information in it with your proxy if you have named one, your family, and your primary healthcare provider. Talk to them about what you have written and why you have chosen to be cared for in this way. Give them each a copy of your advance directive. You may also wish to give a copy to your lawyer if you have one. |
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Can a minor write an advance directive?
In most cases, a person under the age of majority (18 in most provinces) cannot write an advance directive. However, some provinces allow a person under 18 years of age to write an advance directive. It is important to check the legislation in your province.
Click your province's flag to read what is accepted in your province.
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What will happen if I don't have an advance directive?
If you do not have an advance directive, provincial consent legislation or common law sets out who will make decisions on your behalf when you are no longer capable of making treatment decisions and have not appointed a proxy.
Click your province's flag to read what the law is in your province.
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As a healthcare provider, do I have to follow a patient's advance directive?
Yes, you do. A patient's advance refusals of treatment are legally binding if
- the treatment refusals are applicable to the patient's current circumstances, and
- there is no reason to believe that the patient later changed his or her mind.
If you don't follow a valid advance directive, you may be vulnerable to professional discipline and/or a lawsuit by the patient or the patient's family. |
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As a healthcare provider, what do I do if I think that the patient's proxy is not respecting the patient's prior expressed wishes, or is not acting in the patient's best interests?
If you cannot resolve the conflict, you could go to court to ask a judge to resolve it for you. Going to court is always an option for a healthcare provider in such circumstances, as the court has powers to suspend or terminate a patient's substitute decision-maker and overrule any decisions made by that person. |
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As a healthcare provider, how do I know that the patient has not changed his or her mind about treatment?
Sometimes this can present challenges for healthcare providers. You have to work with all the information available to you. Talk to the substitute decision-maker and/or family to find out if the patient has said anything to them that may contradict the directive. Under the common law, if you have good reason to believe that the directive is not representative of the patient's wishes, then you don't have to follow the directive.
Under the advance directive legislation of several provinces, healthcare providers are protected from liability for providing treatment when they thought the advance directive had been revoked if they acted in good faith and in accordance with the legislation. Therefore, it is important for you to check the legislation in your jurisdiction. You should also consult the legislation in your jurisdiction for the specifics of how a person can change his or her advance directive.
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As a healthcare provider, what do I do if the patient's instructions in his or her advance directive are vague or ambiguous?
If the patient's instructions are unclear and, therefore, you do not know exactly what the patient's wishes are, then the advance directive cannot be taken on its own to govern the situation. You could seek clarification from others (i.e., the proxy, family members). If clarification is not possible, you should follow the basic rules concerning decision-making in the absence of an advance directive.
For more information on substitute decision-making, please read this FAQ in the Withholding and Withdrawing Treatment section.
Of course, no advance directive can be sufficiently detailed to delineate every contingency or every possible reaction to a specific situation. Nonetheless, it is important that you, as a healthcare provider, advise your patients to draft their advance directives very carefully and make their instructions as clear as possible so that their wishes can be followed. |
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Where do the provinces stand on advance directives?
These provinces have advance directives legislation:
- Alberta
- British Columbia
- Manitoba
- Newfoundland
- Northwest Territories
- Nova Scotia
- Ontario
- Prince Edward Island
- Quebec
- Saskatchewan
- Yukon Territory
New Brunswick and Nunavut do not have advance directives legislation.
Reciprocity protocols — statements indicating that a province will accept an advance directive written in another province-have been established in British Columbia, Saskatchewan, Manitoba, Ontario, Prince Edward Island, Yukon Territory and the Northwest Territories. These provinces will accept an out-of-province advance directive as long as the advance directive complies with the local requirements.
Click your province's flag to read what the policy is in your province.
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Where does the federal government stand on advance directives?
There is currently no federal law or policy governing advance directives. In 1995, a Special Senate Committee recommended that those provinces and territories that did not have advance directive legislation should pass such legislation. The Committee also recommended that the provinces and territories establish reciprocity protocols to accept advance directives written in other provinces and territories. |
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Where do the courts stand on advance directives?
There have been two significant cases in which the courts have spoken on advance directives.
In Malette v. Shulman, an emergency doctor gave a blood transfusion to a severely injured unconscious Jehovah's Witness woman after finding a card on the woman declaring her unwillingness to undergo a blood transfusion. The card was neither dated nor witnessed. Mrs. Malette survived, but she suffered mentally and emotionally when she found out that she had received a blood transfusion. She sued the doctor, among others, for damages in battery. (A physician who treats a patient against his or her wishes or without an informed decision to have treatment may be found by a court under the common law to have committed what is called a "battery".) The first level of court (Ontario High Court) found the doctor liable in battery and awarded Mrs. Malette $20,000 in damages. The doctor appealed the decision to the Ontario Court of Appeal, which dismissed his appeal. The Court of Appeal ruled that a written advance directive (the Jehovah's Witness card) constituted a refusal of consent to treatment:
"Our concern here is with a patient who has chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusions. Her written statement is plainly intended to express her wishes when she is unable to speak for herself. ... Accordingly, I am of the view that the card had the effect of validly restricting the treatment that could be provided to Mrs. Malette. ..."
Malette v. Shulman (1990), 72 O.R. (2d) 417 at 428, 434 (C.A.)
In a subsequent case, Fleming v. Reid, the Ontario Court of Appeal once again upheld the requirement to respect advance directives. In this case, two psychiatric patients, while competent, refused treatment. They intended for their refusal to be binding even if they became incompetent.
In its decision, the Court wrote that:
"A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard such advance instructions, even in an emergency. The patient's right to forgo treatment, in the absence of some overriding societal interest, is paramount to the doctor's obligation to provide medical care. This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient's life or health, and regardless of how ill-advised the patient's decision may appear to others."
Fleming v. Reid (1991), 4 O.R. (3d) 74 at 85-86 (C.A.).
Canadian courts will require respect for advance directives. |
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Where do healthcare providers stand on advance directives?
Advance Directives for Resuscitation and Other Life-Saving or Sustaining Measures was published by the Canadian Medical Association (CMA) in 1992. This policy statement indicates that patients can make their wishes known about their future medical care through a written advance directive or by appointing a proxy, or both. It also indicates that physicians should assist their patients in these endeavours and should honour a patient's advance directive unless there are reasonable grounds for not doing so.
The Joint Statement on Advance Directives was issued in 1994 by the Canadian Nurses Association, the Canadian Homecare Association, the Canadian Healthcare Association, the Canadian Public Health Association, HomeSupport Canada, the Canadian Long-Term Care Association, and the Canadian Bar Association. This position paper is also available in French.
The co-sponsors of this policy statement promote the principle of client self-determination within health care agencies and facilities, particularly in relation to the treatment and care given in the continuing care sector. The policy is meant to guide the development of institutional policies which will support individual clients in freely expressing their preferences regarding health care and treatment, including the use of life-sustaining procedures, should the individual later become incompetent to make such decisions. Advance directives are one method for people to express their preferences about health care and treatment.
Other professional guidelines make similar statements. Links to them are included here
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Where can I find more information about advance directives?
The End of Life Project's library is a good place to start your search for more information.
In addition, here are some useful links on the internet about Advance Directives.
A sample advance directive is available from the University of Toronto Joint Centre for Bioethics.
Another useful resource is Let Me Decide, an easy-to-follow, plain language advance directive written by Dr. Willie Molloy, a professor of medicine at McMaster University.
Senator Sharon Carstairs has an easy-to-navigate website with useful information on advance directives and other end-of-life care issues. |
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