Advance Health Care Directives (including Living Wills)Sept. 18, 2006 Q - What is an advance health care directive? A - Advance health care directives are a way to set out your wishes in writing for health care in case you should ever become unable to make health care decisions for yourself. This might happen because of illness or accident. Advance health care directives deal only with your wishes for medical treatment, and do not address distribution of property or assets. Sometimes, they are called living wills, but a living will is only one form of advance health care directive. Q - Are there different types of advance health care directives? A - There are two basic types of advance health care directives, a proxy directive and an instructional directive. In a proxy directive, you appoint a person as your proxy and give him or her authority to make health care decisions for you should you become unable to consent to treatment. In an instructional directive, you set out your wishes for what health care measures you want to be taken for you should you become unable to express your wishes yourself. You may combine both directives in your advance health care directive, or you may choose to have only one type of directive but not the other. In Nova Scotia, the law deals only with proxy directives, under the Medical Consent Act. However, you may still provide instructions to direct or guide your proxy in making the proper health care decisions for you. A living will is a form of instructional directive. Q - What is a living will? A - A living will, also more formally referred to as an instructional directive, is a form of healthcare directive in which you set out your wishes for the health care measures you would want to be provided for you if you were unable to communicate your wishes personally (for example, you were unconscious). Q - Who usually makes decisions about health care? A - As long as you are mentally competent and capable of giving consent, it is your legal right to make health care decisions for yourself. An advance health care directive does not replace your personal consent. As long as you are competent your doctor must obtain your consent before giving you medical treatment even if you have written an advance health care directive. If you become incapable of giving consent for any reason, someone else must make health care decisions for you. In your advance health care directive, you can appoint the person you want to make health care decisions for you, and you can include an instructional section that sets out what your health care wishes are. If you appoint someone, he or she is called your proxy. Q - How do I appoint a proxy? A - Under the Nova Scotia Medical Consent Act, the appointment of a proxy must be in writing and signed by you. The signature must be witnessed by a person who is not the proxy or his or her spouse. It is best to have it witnessed by two witnesses. You may appoint any person who is at least 19 years old as your proxy. The person does not have to be related to you. If you choose to appoint a proxy, choose someone who you can trust to carry out your wishes. You should take time to discuss your wishes for health care with your proxy whether or not you choose to write an instructional directive. Q - Who will consent for me if I'm unable to and I have not appointed a proxy? A - ATypically, your doctor will ask someone closely related to you to consent on your behalf if you are incapable of consenting and have not appointed a proxy. Usually this will be your spouse, your next of kin, or a parent. Alternatively, a relative or friend could apply to the courts to be appointed as your guardian. Before appointing a guardian, a judge must be satisfied that you are incapable of consenting, and that it is in your best interests to have a guardian appointed. When there is no guardian or other person capable of consenting for you, the Public Trustee may be asked to give consent for you. Although the law on advance health care directives in Nova Scotia deals exclusively with proxy directives, you may still leave an instructional directive even if you choose not to appoint a proxy to provide guidance to the person who has to give consent for you. Q - Can a common-law or same-sex partner make decisions about my health care? A - The Nova Scotia Hospitals Act allows common-law partners to give consent to medical treatment when you are unable to consent as long as you have been living together with your common law partner as though you were spouses. Registering your common-law or same-sex relationship as a domestic partnership may make it easier for your partner to show that you were living together as spouses. The best way to make sure that your common-law or same-sex partner will be allowed to give consent for you if you are unable to consent is to appoint him or her as your proxy. Q - Must my proxy and doctors carry out my instructional directive? A - In Nova Scotia, instructional directives are not legally binding in the sense that your proxy can be held legally responsible for not following their precise terms. Your proxy will have to work with your doctor and other medical staff in deciding what to do, taking into account all factors including your wishes. However, an instructional directive is a clear expression of your wishes for health care, and will generally be respected by your doctors. There have been cases where physicians were clearly held accountable for not following the specific request of their patients which were set out in an instructional directive (living will). Instructional directives can also be of use in easing the burden on the proxy when making decisions for you, as he or she may not otherwise know what you would wish to take place. As well, family members may take comfort in knowing that they are following your wishes. Q - How do advance health care directives differ from euthanasia and assisted suicide? A - Euthanasia is the term used when someone takes steps to end your life to relieve your suffering. Assisted suicide is the term used when someone takes steps, at your request, to end your life because your injury or illness prevents you from committing suicide without help. Both euthanasia and assisted suicide are illegal under Canadian criminal law. An advance health care directive only allows your proxy to make decisions that you would be legally allowed to make if you were still capable of giving consent. Although you can request in an instructional directive that your proxy refuse to give consent for treatments that would prolong your life, you cannot request that he or she take active steps to end your life. Q - Who should have an advance health care directive? A - Writing an advance health care directive is a personal decision. Advance health care directives can help to give you some control over who will make decisions for you and what decisions will be made if you become unable to consent because of illness, injury, or accident. However, you may wish to simply leave decisions about your health care to your family and doctors without the formality of an advance health care directive. If you choose not to have an advance health care directive, you should discuss your health care wishes with your family, doctor, and proxy (if you choose to appoint one). The more they know about your wishes, the easier it will be for them to make decisions for you if they are called upon to do so. As well, if you want someone other than your spouse or next of kin or you want a particular family member to be able to consent to treatment on your behalf, if you are unable to do so, you should appoint that person as your proxy. Q - Who should I talk to when writing my advance health care directive? A - You should talk with both your doctor and lawyer when writing an advance health care directive. Although consulting a lawyer alone will likely ensure that your advance health care directive meets its legal requirements, lawyers are unlikely to be medical experts, and will not be able to give meaningful advice about different illnesses or injuries you may suffer or medical treatments. Consulting your doctor is a good way to be sure that you understand the different treatment options available and the best type of instructions to meet your particular needs. Without medical advice you may not understand the nature of various treatment options and may give instructions in your directive that will not provide the results you want or wish to achieve for yourself. Q - How specific should my health care instructions be? A - Advance health care directives are often intended to deal with the serious injuries or illnesses that you are unlikely to ever recover from. The most important purpose of an advance health care directive is to help you obtain the level of comfort and care you want for yourself for the remainder of your life. You should talk with your doctor when writing your instructional directive to decide which treatments would be best in what circumstances to achieve the results you want. It is important to avoid making overly broad statements, such as asking not to be given any medication, which might prevent your doctors and proxy from agreeing to a treatment that would ease pain or help you overcome minor ailments during your illness. Q - What information do I need to put into an Advance Health Care Directive? A - The content of the Advance Health Care Directive depends on your needs and you should talk to your physician and your lawyer about how best to achieve the results your want. Usually an Advance Health Care Directive begins: I, (your full name and address), make this Advance Health Care Directive in accordance with the Medical Consent Act. It may continue to be exercised during any legal incapacity on my part. Other common clauses include: - A revocation clause revoking any former advance health care directives or proxy appointment you've made.
- A clause appointing a proxy.
- A clause appointing a substitute proxy if your first choice is unwilling or unable to act.
- The date when the Advance health Care Directive comes into effect or you can state that it comes into effect immediately.
- The scope of the authority you give your proxy.
- Whether you consent to your proxy receiving information about your health care and give him or her authority to sign consent forms and other documents if you are incapacitated.
- Whether you want your proxy to manage all your property and personal affairs.
Your lawyer can advise you on what clauses you need to meet your particular needs. You may also include an instructional directive setting out your wishes for health care in the event you are unable to communicate your wishes because of incapacity. Instructional directives can be general or as specific as having a chart setting out a guide to the treatment you'd want depending on the specific illness. You should talk with your physician and lawyer about your particular needs. Sometimes an advance health care directive includes information about whether you consent to your organs being donated and information about your wishes for funeral arrangements. Q - Where should I keep my advance health care directive? A - If you become unable to consent, your proxy and medical staff will need to read your instructional directive quickly in order to make a proper treatment decision for you. In order to ensure that your physician or doctor will know what to do if you need treatment, you should give a copy to your physician to keep in your medical file so that it can be easily accessed in emergencies. You could also give a copy to your proxy or to a family member if you haven't appointed a proxy. It is not a good idea to keep it in a place where it would be difficult to reach, such as a safety deposit box. Q - How often should I update my advance health care directive? A - Advances in medical technology are constantly bringing new ways to treat diseases and injuries. It is important to review your advance health care directive with your physician regularly to make sure you have accounted for new treatment methods and technology. You should try to review your advance health care directive at least once every two years. If you have a specific illness or condition, you should review your directive more frequently to make sure you keep up to date on treatments. Organizations that deal with specific diseases or illnesses, for example, cancer, AIDS, and Alzheimer's disease, may be good resources for information about new treatments and advances in care, as well as providing support and coping strategies for family members. You can ask your doctor or specialist for more information or go online. If you are getting information online, be sure that it is from a reliable source. Q - Will my advance health care directive be valid outside Nova Scotia? A - The requirements for advance health care directives vary in different provinces and countries. If you become unable to consent while traveling or living outside Nova Scotia, your directive may not be followed if it does not meet the legal requirements of the province or country. When traveling, you should review your advance health care directive and get advice from your lawyer to ensure that it will be followed should you be unable to consent to treatment. If you are living outside Nova Scotia for an extended time you may want to have an additional advance health care directive that is valid in the province, state or country you will be living in. Q - What should I do if I'm asked to sign a standard advance health care directive form? A - Some health and residential care facilities may have standard directives that they ask all patients or residents to sign when admitted. These directives may contain instructions that you would not actually want, such as 'blanket' do-not-resuscitate order. You are not required to sign this standard form, and you cannot be refused treatment or admittance for refusing to sign it. If you are given a standard form, you should review it with your physician before deciding whether to sign it. Do not sign a standard directive form if it would not give you the health care results you want. You can instead discuss your health care wishes with your family and/or proxy or include them in your own advance health care directive. In response to the needs of the patients or residents they serve, many facilities will ask you if you have an advance health care directive or living will. They may (and should) request a copy to place in your file. Q - Can I cancel an Advance Health Care Directive? A - Yes. You can change your mind at any time provided you are competent. You can cancel your Advance Health Care Directive by giving notice in writing to your proxy or by making a new Advance Health Care Directive. If you cancel your Health Care Directive, it is important that you inform your physician or hospital and that you get back any copy you gave them for your chart. It is important that you let them know that you have changed your mind, whether or not you decide to make a new directive. You may also want to tell family members. If you decide to make a new Advance Health Care Directive be sure to include a clause revoking the old one, for example, "I revoke all former advance directives and authorizations or other delegation of authority to an agent". If you make a new Directive, make sure that you provide your physician with a copy. For more information visit the website of the End of Life Project - Health Law Institute, Dalhousie University - click here. return to the top of page
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