In our last article, we spoke about the temporary substitute decision maker that is appointed under the Health Care Consent and Care Facility Admission Act. This article focuses on Advance Directives, which became a legal document in BC as of September 1, 2011, when the Health Care Consent and Care Facility Admission Act was amended. An Advance Directive is written instructions about what health care you do or do not want in the future if you become incapable and a health care decision needs to be made. The essence of an Advance Directive is the written instruction(s) giving or refusing consent to specific health care. An Advance Directive does not appoint a person to act on your behalf.
An Advance Directive sets out your instructions for health and personal care that are given directly to your health care provider (ie: doctors and nurses), which he or she must follow when it speaks to the care you need at the time. There are, however, some exceptions. The health care provider has discretion in following the Advance Directive with respect to your instructions about giving consent to treatment while they must follow instructions that refuse consent to specific health care. Again, there are some exceptions to this. You cannot write an instruction that is against the law in Canada and you cannot instruct to refuse consent for treatment that is required by law. The health care provider may not follow your instructions if there have been changes in medical knowledge, practice or technology since you made the Advance Directive (unless you state you want your wishes carried out despite any advances). If you have a Representation Agreement that covers the health care in question, then your health care provider does not to consider the Advance Directive and instead it is used only to provide guidance to the appointed Representative in making your required health care decision.
To write an Advance Directive, you must be 19 years old, capable of understanding the type of health care your instruction deals with and the consequences of giving or refusing consent to such care. You must also understand that if you make an Advance Directive and your instruction applies to the specific health care offered when you are incapable, a health care provider will only follow the instruction. They will not select someone to be a temporary substitute decision maker (see our previous article here on TSDMs).
Finally, many of our newly arrived clients from other provinces ask – how does a living will fit into our health care plan? A living will does not have any legal effect on its own in BC. It would only provide guidance to your appointed Representative (under a Representation Agreement), with regards to your instructions, wishes, preferences and values, in making your health care decisions.
In future articles, we will examine representation agreements in more depth.
If you need further advice on what the health care decision making options are or if you are looking to simplify the complicated, contact our wills and estate team at Touchstone Law Group LLP.
Author: Jennette Vopicka
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