Advance Directives

Advance directives are directions given by a competent individual concerning what and/or how and/or by whom decisions should be made in the event that, at some time in the future, the individual becomes incompetent to make health care decisions.

There are two types of advance directives:

Instructional directive
Instructional directives state what (or how) health care decisions are to be made when you are unable to make these decisions yourself.  This type of directive may set out specific instructions or it may set out general principles to be followed for making your health care decisions.  Instructional advance directives are also known as “living wills”.
Proxy Directive
Proxy directives specify who you want to make decisions for you when you are no longer able to make the decisions yourself.  This type of directive is also known as “durable powers of attorney for healthcare”.

Canadian courts have indicated that advance directives must be respected.

In Malette v Shulman, the Ontario Court of Appeal stated:

A doctor is not free to disregard a patient’s advance instructions any more than he would be free to disregard instructions given at the time of the emergency. (at 424).

In Fleming v Reidthe Ontario Court of Appeal stated:

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.

Much more detail with respect to the legal status of advance directives is spelled out in provincial/territorial legislation. Information specific to each province and territory can be found below.

Additional information on advance directives (including more samples) can be found on The Canadian Hospice Palliative Care Association’s Speak Up Campaign and Dying with Dignity.

Province and Territory Specific Information on Advance Directives

British Columbia

New Brunswick

Ontario

Québec

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