Advance Directives in BC: Putting Your Health Care Wishes in Writing

Many people call it a living will. In BC the document is an advance directive, and it is governed by Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act.

It can speak for you directly when you cannot, but only if it is made properly and fits with any representation agreement you also have. This article explains how those pieces work together.

What an advance directive is

The Act defines an advance directive as a written instruction, made by a capable adult, that gives or refuses consent to health care in the event that the adult is not capable of giving the instruction when the care is needed. It must also meet the requirements of Part 2.1.

Under section 19.2, you may give or refuse consent to any health care described in the directive. Two limits apply: an instruction to do something the law prohibits, or to leave out something the law requires, is not valid and is severed from the directive.

An advance directive covers health care only. It does not deal with money or property. Those matters belong in other documents, which we cover in Estate Planning Documents Every BC Adult Should Have.

What a directive binds a health care provider to do

Section 19.7 applies when a provider believes you need health care, you are incapable of consenting, the provider does not know of a personal guardian or representative with authority over that care, and the provider is aware you have a relevant advance directive. In that situation the provider:

• May provide health care you consented to in the directive.
• Must not provide health care you refused in the directive.

If a provider gives care without knowing about a directive that refuses it, and later learns of the directive, section 19.9 says the care must be withdrawn unless one of the exceptions below applies.

A provider only has to make a reasonable effort in the circumstances to find out whether you have a directive, guardian or representative (s 19.7(3)). A directive no one can find does little, so where you keep it, and who knows about it, matters.

When a directive applies, no temporary substitute decision maker is chosen for the care it covers. That is a real difference from the default rule in section 16, under which a provider picks the first available person from a list that starts with your spouse, then your child, then your parent, and continues through other relatives and close friends.

When the directive does not apply

Section 19.8 lists four situations in which a provider who reasonably believes one of them exists does not follow the directive:

• the instructions do not address the decision to be made;
• the instructions are so unclear that the provider cannot tell whether you consented or refused;
• while you were still capable, your wishes, values or beliefs about the decision changed significantly, and the directive does not reflect the change; or
• since you made the directive, medical knowledge, practice or technology has changed significantly in a way that might substantially benefit you.

In those cases the provider must get substitute consent under the Act's other rules instead. You can close off the fourth exception by stating expressly in the directive that your instructions apply regardless of any change in medical knowledge, practice or technology (s 19.8(3)). Whether to do that is a personal choice worth thinking through.

Making a valid advance directive

You can make one unless you are incapable of understanding its nature and consequences. Section 19.1 says that means understanding the scope and effect of your instructions and that no substitute decision maker will be chosen for the care the directive covers, except in the section 19.8 situations.

The form rules in sections 19.4 and 19.5 are strict:

• Content. The directive must address any matter set by regulation and state that you know a provider may not give you care you refuse in it, and that no one may be chosen to decide for you about care you have consented to or refused in it.
• Signing. It must be in writing, signed and dated by you in the presence of two witnesses, who both sign in your presence.
• One witness. One witness is enough if that witness is a lawyer or a member in good standing of the Society of Notaries Public of BC.
• Who cannot witness. Anyone under 19, anyone who provides you personal care, health care or financial services for pay (other than a lawyer or notary), that person's spouse, child, parent, employee or agent, and anyone who does not understand how you communicate without interpretive help.
• Signing for you. If you are physically unable to sign, someone else may sign at your direction in your presence, but not a witness or anyone barred from witnessing.

You can change or revoke the directive while capable (s 19.6). A change must be signed and witnessed the same way. You can revoke it with a later document stating that intention, or by destroying it intending to revoke it.

If you also have a representation agreement

Many people sign both an advance directive and a representation agreement naming someone to make health care decisions for them. Section 19.3 of the Act sets the order between them, whichever document you signed first.

Where your representative has authority over a matter, the provider does not follow the directive directly on that matter. Instead, your directive is treated as your wishes expressed while capable for the purposes of section 16 of the Representation Agreement Act. Under that section, a representative must consult you about your current wishes where reasonable and follow them if reasonable to do so. If that is not possible, the representative must follow the instructions or wishes you expressed while capable.

So the representative leads, guided by your directive. If you want a provider to be able to act on your directive without the representative's consent, your representation agreement can say so (s 19.3(2)). Choosing between those approaches is a central drafting decision. For how the two main incapacity documents differ, see Power of Attorney or Representation Agreement?.

Practical steps

• Talk with your doctor about the kinds of treatment you want to address, so the wording is specific enough to be followed.
• Give copies to your doctor, your representative and close family, and tell them where the original is.
• Review the directive after a new diagnosis, a major change in your health or a change in your views.
• No one can require you to have an advance directive as a condition of receiving a good or service (s 19.91).

Want your health care wishes to be followed? Put them in a form that works

Our wills and estate planning lawyers can prepare an advance directive alongside your representation agreement and enduring power of attorney, so the documents work together and are signed and witnessed correctly.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.