The New Advance Directive

On September 1, 2011, the B.C. government made changes to the Health Care (Consent) and Care Facility (Admissions) Act. The changes introduced a new planning tool, the advance directive.

The advance directive gives an adult the opportunity to set out in writing specific health care to which he or she consents or refuses. Provided that the advance directive meets the statutory execution requirements, it must be followed by a health care provider, subject to the following exceptions:

• The instructions in the advance directive do not address the health care decision to be made
• The instructions in the 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 is capable, his or her wishes, values or beliefs in relation to a health care decision significantly changed, and the change is not reflected in the advance directive
• 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.

The law does allow an adult to expressly state in the advance directive that the instructions given in the advance directive apply regardless of any change in medical knowledge, practice or technology. Subject to that, where any of the circumstances described above exist, the health care provider must appoint a “temporary substitute decision maker” to provide consent to the contemplated health care, unless the adult has a representative. Click here for information about representatives.

Where there is a representative, the advance directive acts as the adult’s wishes, and the representative has a statutory duty to follow the instructions contained in it. The adult should nevertheless consider whether the representative or the advance directive will have priority in future health care decisions. It has been our experience that most clients prefer to give the representative the “final say” in any future health care decisions. In that case, both the representation agreement and the advance directive should contain a provision that a health care provider may not proceed with health care described in the advance directive without the consent of the representative.

A distinction should be made between the advance directive and any written instructions that an adult may give to his or her representatives. Such instructions (sometimes called a personal directive) do not need to comply with any particular formalities, and can be useful to inform the representative of the adult’s wishes.

This article is informational only. For advice on your specific situation, we would be pleased to assist.