"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Sunday, May 25, 2008

A Hearty Welcome To The Proposed 'Personal Directives Act'

Update: In an effort to add some clarity that I feel may have been sorely lacking in this post, I dug around and came across some more succint information at The Legal Information Society of Nova Scotia.

Q - Are there different types of advance health care directives?

A - There are two basic types of advance health care directives,
a proxy directive and an instructional directive.

In a proxy directive, you appoint a person as your proxy and give him or her authority to make health care decisions for you should you become unable to consent to treatment.

In an instructional directive, you set out your wishes for what health care measures you want to be taken for you should you become unable to express your wishes yourself.

You may combine both directives in your advance health care directive, or you may choose to have only one type of directive but not the other.

In Nova Scotia, the law deals only with proxy directives, under the Medical Consent Act. However, you may still provide instructions to direct or guide your proxy in making the proper health care decisions for you.

Bottom line, although "living wills", which are considered instructional directives, are not yet recognized at law in Nova Scotia (although this will likely change with the passing of the proposed Personal Directives Act) they can still be useful devices, as in most situations, I think you will find most healthcare professionals will attempt to follow your stated wishes.

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Although some Nova Scotians currently make use of 'advance care directives' or 'living wills' in an effort to appoint another person to make decisions on their behalf, give advance instructions or express their wishes on future personal care decisions, presently in Nova Scotia there is no specific legislation governing such documents. This is unfortunate, given that such documents allow individuals, while they are able, to express their personal autonomy in decisions that will affect them in the event of their incapacity.

Currently, the Powers of Attorney Act authorizes a person by execution of a Power of Attorney to authorize another person (the attorney) to manage their estate (property). A Power of Attorney is referred to as an enduring Power of Attorney if it contains a provision expressly stating that it may be exercised during the legal incapacity of the donor. However, the Powers of Attorney Act does not specifically provide for Powers of Attorney for personal care.

The only type of advance health care directive currently available in Nova Scotia is found in the Medical Consent Act. This legislation allows for a person to pre-authorize another person to give consent or direction respecting medical treatment in the event the person becomes incapable of giving consent. However, it does not provide for personal care decisions, other than medical ones, and does not provide for a person to give instructions and express their wishes about personal care decisions, including medical care.

Thus, other than medical care, there is no specific legislative authority to allow a person to appoint another person to make decisions on matters of personal care, for example, with respect to residence, care and services, and matters of comfort. Nor is there any specific legislative authority to allow a person to give advance instructions or express their wishes on future personal care decisions.

And for those who have not made an authorization pursuant to the Medical Consent Act, there is no provision in law that allows for a substitute decision maker for medical decisions for incapable persons outside of a hospital unless there is a court appointed guardian for medical care outside of a hospital.

Many stronlgy believe that other forms of advance health care directives should also be legal in Nova Scotia to better meet the needs of some people and point to the fact that advance health care directives in a variety of forms are available under laws in other provinces.

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