What is an Advance Directive?

As a result of changes to the Health Care (Consent) and Care Facility (Admission) Act (the "HCC Act"), it is now possible to create a document called an "Advance Directive". An Advance Directive is similar to what is commonly referred to as a "Living Will" in that it allows for a person to give or refuse consent to specific medical treatments in case he or she becomes incapable of giving such directions in the future. Advance Directives essentially provide a record of a person’s wishes relating to the provision of health care if he or she is unable to communicate and/or has been diagnosed with a terminal illness or condition.

Typically, Advance Directives request that no extraordinary measures be taken to prolong the person’s life if in a terminal state and unable to communicate.

Legal Recognition of Advance Directives as of September 1, 2011

The new Advance Directives have been made legally binding on health care providers by the Amendments to the HCC Act. This is a significant change to the law in BC as Living Wills, which were in use prior to September 1, 2011, were not legally recognized by any legislation.

While the Amendments make Advance Directives binding on health care providers, there are certain circumstances in which a health care provider will not be obligated to follow the instructions set out in an Advance Directive. In particular, an Advance Directive will not apply if a health care provider reasonably believes that:

• the instructions in an Adult's Advance Directive do not address the health care decision to be made;
• in relation to a health care decision, the instructions in an Adult's Advance Directive are so unclear that it cannot be determined whether the Adult has given or refused consent to the health care;
• since the Advance Directive was made and while the Adult was capable, the Adult's wishes, values or beliefs in relation to a health care decision significantly changed, and the change is not reflected in the Advance Directive; or
• since the Advance Directive was made, there have been significant changes in medical knowledge, practice or technology that might substantially benefit the Adult in relation to health care for which the Adult has given or refused consent in an Advance Directive.

Aside from the above exceptions, if a health care provider knows of the terms of an Advance Directive that refuses the type of care being provided, he or she must withdraw that type of care. This is a result of the "binding" nature of an Advance Directive as set out in the HCC Act.

Typical Provisions Included in an Advance Directive

Although there is no prescribed form, generally speaking an Advance Directive will have language indicating that if a person is in a terminal condition or is otherwise unable to give instructions relating to his or her health care, the provided directions are to be followed.

An Advance Directive can state that the Adult refuses all extraordinary measures when in a terminal condition or vegetative state with no hope of recovery. An Advance Directive which refuses all extraordinary measures can also refuse treatments such as the provision of intravenous fluids or kidney dialysis.

It is also possible to create an Advance Directive which consents to all extraordinary health care measures regardless of whether or not the Adult is in a terminal condition and has no prospect of recovery, although this is less common.

Procedures for Signing an Advance Directive

In order to properly sign an Advance Directive, the Adult must sign in the presence of two witnesses. If a lawyer or notary acts as a witness only one witness is required.

The following individuals cannot witness the signing of an Advance Directive:

(a) a person who provides personal care, health care, or financial services to the Adult for compensation (other than a lawyer or notary);
(b) a spouse, child, parent, employee, or agent of a person described in paragraph (a);
(c) a person who is under 19 years of age; and
(d) a person who does not understand the type of communication used by the Adult, unless that person receives interpretive assistance.

Revocation of Advance Directives

In the event that the Adult who created the Advance Directive changes his or her mind with respect to a particular type of care or decides to revoke the entire document, such changes must be in writing and witnessed according to the same rules that apply for witnessing the Advance Directive itself.