Practical Applications - The Irony of the Personal Directives Act

Facing significant potential problems with the use of a Power of Attorney for many individuals with disabilities, we now turn to the Nova Scotia's new Personal Directives Act, which we initially discussed here.

Might it be useful for our community?

Unfortunately, I'm afraid not.

The first major problem that needs to be pointed out is that the legislation is not yet proclaimed in force. Meaning that, from a legal point of view, it doesn't actually exist. A giant legal tease if you will - it's here. But it isn't. Now you see it. Now you don't.

And no, I have no inside knowledge as to when (or even if) it will be proclaimed. Perhaps something to contact your MLA about should you feel the need to put an end to the shenanigans.

Putting aside that little inconvenience, the question remains - is a "personal directive" a possibility that could be used to avoid guardianship?

The as-yet-unproclaimed legislation would allow a "person with capacity" to make a personal directive setting out instructions or an expression of their values, beliefs and wishes about future personal-care decisions to be made on their behalf and authorizing one or more persons to "act as delegate" to make decisions concerning their personal care on their behalf.

"Personal care” is defined as including, but not being limited to, "health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services and any other personal matter that is prescribed by the regulations". Those would be the regulations which are not yet in existence. Seeing as how the legislation itself remains in some sort of legal purgatory.

Putting that litle issue aside (yet again), I'm afraid I'm to be the bearer of two more pieces of bad news.

First, although the Personal Directive Act allows for combining a personal directive with an enduring power of attorney in a single document [sec. 23], a personal directive does not and cannot apply to financial issues. The situation remains that the only way to nominate a person to act on another's behalf in regard to financial matters in Nova Scotia (outside of guardianship) is through the use of a Power of Attorney.

The second difficulty, at least indirectly, involves the level of competency required in order for a person to execute a valid personal directive.

For the purposes of the Personal Directives Act, "capacity" is defined as "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision". [sec. 2(a)]

Turning our attention to our previous discussion on capacity in the context of Powers of Attorney, you might recall this statement:

Capacity and incapacity (and competency and incompetency) are legal concepts. And they are task specific. For example, the minimum level of competency required for a person to execute a valid Will (which we call testamentary capacity) is lower than that required for many other legal acts. In the context of making a Will, what is essential is whether the person has the ability to understand the information relevant to making the pertinent decision and the ability to appreciate the reasonably foreseeable consequences of that decision (or lack of decision).

So although I hesitate to commit to an opinion on this issue at the moment, it certainly would appear, based on the wording of the legislation, that the standard of competency required to execute a personal directive is very similar to that required in order to execute a valid Will.

And given that at least a segment of the population with intellectual challenges who would not have the higher level of competency required to enter into a contract, for example, could likely still execute a valid Will, the legislation would appear to provide an avenue for those individuals to nominate a person to make personal care decisions for them.

Good news, says you.

Maybe, says I.

There's just for one little problem. Caused by sections 9 and 12 of the Act.

9 A personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.

12 (1) A personal directive has no effect (a) in respect of a personal-care decision, whenever the maker has capacity; (b) on the maker's death; (c) when the personal directive is revoked by a maker who has capacity and makes the revocation in writing, executed in the same way as the personal directive; or (d) on a determination by the court that the personal directive ceases to have effect.

We now find that our although our hypothetically challenged person may have the capacity to execute a valid personal directive (if they have "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision"), their personal directive will only go into effect when they lack the capacity to make a personal care decision. And, just to put a cherry on it, their personal directive will have no effect whenever they have such capacity. Which capacity, we've already ascertained, they must clearly have had in order to execute a personal directive in the first place.

Leaving us, I would suggest, with a perfectly valid personal directive which will, unfortunately, remain useless (despite its validity) unless and until the maker becomes (even) more incapacitated.

Oh, the irony.

It kind of reminds me of having a Personal Directives Act (which, I must say, will be a very useful and much-needed piece of legislation for very many individuals) that isn't. For the moment, anyway.