Reference Articles > DEFINITIONS – HEALTH AND PERSONAL CARE DECISIONS   

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This article provides some terminology in the personal care arena

Advanced Directive

An advanced directive refers to the means used to communicate a person’s preferences about treatment decisions in the event they cannot express those wishes themselves. Under this document a capable person expresses instructions that should be followed if they become incapable of making or expressing their own decisions regarding personal care or treatment. It does not appoint a person to make decisions on their behalf if they become incapable of making decisions regarding personal care. Instead, it provides a means of documenting one’s wishes without the requirement of naming an attorney. It is not a legal document in the sense as a power of attorney but the wishes contained therein are as legally binding as any instruction contained in a power of attorney for personal care as it relates to the principles of consent set out in the Health Care Consent Act, 1996.

There are two forms of advance directives: instruction directive, or a living will and proxy directives, or a power of attorney for personal care.

Living will

A living will refers to the communication of the detail of what treatments a person would want or not want in given situations. Under such a document a patient gives instructions, while capable, for his or her medical care. The patient expects the care received will conform with his or her wishes should he or she later become incapable. Under pre-existing law, however, there was no guarantee that these wishes would be followed and medical practitioners found themselves sometimes challenged by family members. Hence the evolution under the Substitute Decisions Act, 1992 of the power of attorney for personal care.

A power of attorney for personal care

A power of attorney for personal care refers to a document that names the person who is to make personal care decisions if the person becomes incapable. “Proxy” means the designation of a substitute decision maker. Under this document authorized by statute, a capable person appoints a person to make decisions on their behalf if they become incapable of making decisions regarding personal care and expresses instructions that should be followed if they become incapable of making or expressing their own decisions regarding personal care.

There is no reference to advance directives or living wills in the Substitute Decisions Act, 1992 – the statutory scheme in Ontario. This statute only refers to powers of attorney for personal care and “wishes”. For a written document to validly provide for the appointment of a substitute decision maker it must meet the technical requirements of a power of attorney for personal care.

For more information on estate, trust, powers of attorney or guardianship topics please see accompanying articles. Remember these articles are provided for information only and are not meant to be legal advice. Please consult with a professional.

M. Jasmine Sweatman practices at the law firm Sweatman Law Firm and can be contacted directly by telephone at (905)337-3307 or by email at jasmine@sweatmanlaw.com.