Advance Directives

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.

It is important to know that provinces and territories may allow you to say in advance what medical treatment, preventive care, and other personal care you want and do not want (this may include artificial hydration and nutrition or oral feeding and liquids). Details on voluntarily stopping eating and drinking and voluntary stopping personal care are available here.

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: