Advance directives are a way of making sure that your wishes and values are respected in important decisions (especially health care decisions) made for you when you are no longer able to make such decisions for yourself.
There are two kinds of advance directives. In one, you choose who you would want to make these decisions for you. In the other, you give instructions about what decisions you would want made or you describe your values and beliefs to guide a decision maker about what you would have wanted in a given situation. In some parts of Canada, you can only do the first kind. In some, you can do both.
You can only make an advance directive while you are competent; nobody else can make an advance directive for you. “Competent” in this case means “able to make important decisions for yourself.” The advance directive only takes effect if you stop being competent.
It is a good idea to make an advance directive while you are well. You could become incompetent or unable to speak suddenly, for example, if you were in a serious car accident.
Canadian courts have said that doctors and other health care providers must respect valid advance directives.
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 Reid, the 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.
Every province and territory has laws that set out rules for a valid advance directive. These laws do NOT apply to MAiD. It is NOT possible to request MAiD through a provincial or territorial advance directive. For information about requests for MAiD made in advance of loss of decision-making capacity see the section of this site Assisted Dying.
You can find helpful information on advance directives (including province/territory specific instructions and forms) below:
National Advance Care Planning Task Group’s Speak Up Campaign
Dying with Dignity Canada Advance Care Planning Kits
You can find some single province/territory specific resources below:
Legal Information Society of Nova Scotia personal directives app
Public Legal Education and Information Service of New Brunswick, Advance Health Care Directives
British Columbia Nidus Personal Planning Resource Centre and Registry
Community Legal Information Association of PEI, Health Care Directives
Public Legal Education of Saskatchewan, Health Care Directives
You can find official government documents below:
Alberta
General information
Alberta Health, Personal Directive
Legislation
Personal Directives Act,RSA 2000, c P-6
Personal Directives Regulation,Alta Reg 99/2008
Personal Directives (Ministerial) Regulation,Alta Reg 26/1998
British Colombia
General information
Ministry of Health, Advance Care Planning
Ministry of Justice, Incapacity Planning
Ministry of Health, “My Voice: Expressing My Wishes for Future Health Care Treatment” Advance Care Planning Guide
Public Guardian and Trustee of British Columbia, “It’s Your Choice, Personal Planning Tools”
Legislation
Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181
Health Care Consent Regulation,BC Reg 20/2000
Representation Agreement Act,RSBC 1996, c 405
Representation Agreement Regulation,BC Reg 199/2001
Adult Guardianship Act, RSBC 1996, c 6
Patients Property Act, RSBC 1996, c 349
Manitoba
General information
Manitoba Health, Health Care Directive
Legislation
The Health Care Directives Act,CCSM c H 27
New Brunswick
General information
New Brunswick Health, Advance Health Care Planning
Legislation
Infirm Persons Act, RSNB 1973, c I-8
Newfoundland and Labrador
General information
Newfoundland Department of Health and Community Services and Justice, “How to Make an Advance Health Care Directive”
Legislation
Advanced Health Care Directives Act,SNL 1995, c A-4.1
Northwest Territories
General information
Northwest Territories Health and Social Services, “Personal Directives”
Legislation
Personal Directives Act,SNWT 2005 c 16
Nova Scotia
General information
Nova Scotia Department of Justice, Personal Directives in Nova Scotia
Legislation
Personal Directives Act,SNS 2008, c 8
Personal Directives Regulations,NS Reg 31/2010
Ontario
General information
Ministry of the Attorney General of Ontario, How Powers of Attorney Work
Legislation
Health Care Consent Act,SO 1996, c 2 Sch A
Evaluators, O Reg 104/96
Substitute Decisions Act, 1992, SO 1992, c 30
Capacity Assessment, O Reg 460/05
Prince Edward Island
General information
Health PEI, Advance Care Planning
Legislation
Consent to Treatment and Health Care Directives ActRSPEI 1988, c C-17.2
General RegulationsPEI Reg EC356/00
Québec
General information
The Curateur public of Québec
Legislation
Civil Code of Québec, CQLR c C-1991
Public Curator Act,RSQ c C-81
Regulation respecting the application of the Public Curator Act,chapter C-81 r.1
Saskatchewan
Legislation
The Health Care Directives and Substitute Health Care Decision Makers Act, 2015 SS 2015, c H-0.002
The Health Care Directives and Substitute Health Care Decision Makers Regulations, 2017, RRS c H-0.002 Reg 1
Yukon
General information
Yukon Health and Social Services on Advance Directives
Legislation
Care Consent Act SY, 2003, c 21, Sch B