Advance Care Planning in British Columbia

Advance Directives

We have the right to express our voice and thoughts about our health care, and we can do so using Representation Agreements and/or Advance Directives. They tell your family and your doctor what to do if you are badly hurt or have a serious illness that keeps you from deciding what you want.

An advance care plan involves talking with your family, your representative, and your doctor about the kinds of care you do or do not want to have. These decisions can then be relayed to your lawyer, who will help you draft and finalize these important documents. Of course, as long as you can still make your own decisions, your advance care plan will not be used. You can say “yes” or “no” to treatment at any time.

What is an Advance Directive?

An Advance Directive is written instructions about what health care you do or do not want in the future if you become incapable and a health care decision needs to be made. An Advance Directive does not appoint a person to act on your behalf.

You do not need a legal professional in order to make an Advance Directive. However, there are legal requirements such as who can be a witness as well as statements you must include. The law, also does not provide any examples of wording to use for an effective instruction. The law provides some general rules, such as:

  • An instruction can only cover health care decisions, nothing else;
  • It cannot include an instruction that is against the law;
  • It cannot include an instruction refusing consent to something that is required by law (e.g. use of the Mental Health Act if you are a danger to yourself or others);
  • Instructions can only be written while you are capable, but the instruction needs to be about the health you think you might be offered in the future if you are determined incapable.

Most importantly, an instruction must be clear that it gives or refuses consent to the specific health care decision. This means it must apply to the health care that is offered at the time you are incapable. Our lawyers can help you draft these specific instructions.

So, after all this, does the health care provider have to follow your Advance Directive?

A health care provider will consider a number of issues when deciding to follow an Advance Directive. First, they must decide that you need health care. Second, that you are incapable of consent.

The law says a health care provider may follow an instruction in an Advance Directive giving consent to specific health care but that they must follow an instruction that refuses consent to specific health care.

The law also says that if treatment has been started before the health care provider is aware of the contents of your Advance Directive, and it includes an instruction refusing consent to the specific health care being offered, the health care provider must stop or withdraw the health care.

However, even if your Advance Directive has clear instructions, a health care provider must not follow your Advance Directive if:

  • You have a Representation Agreement that covers health care, unless you included a statement in the Agreement to say otherwise.
  • The instruction does not apply to the specific health care decision.
  • The health care provider has evidence that your wishes, values and beliefs have significantly changed since you made the Advance Directive, unless this is accounted for in the Advance Directive.
  • There have been significant changes in medical knowledge, practice or technology since you made the Advance Directive and these might substantially benefit you in relation to the health care instruction in your Advance Directive, unless you included a statement that you want your instructions followed despite any such changes.

How does an Advance Directive fit with a Representation Agreement?

If you have a Representation Agreement and an Advance Directive (it does not matter which you made first), the Representation Agreement takes priority. Your representative(s) must follow any instructions or wishes you expressed verbally and/or in writing, including in an Advance Directive. You have the option of including a statement in your Representation Agreement that a health care provider does not have to involve your representative in the specific health care decision(s) covered by your Advance Directive. This will give the Advance Directive priority.

How much does it all cost?

There are certain matters where we are able to charge a flat fee, such as drafting an Advanced Directive. We offer discounts for estate planning packages. For further information on legal fees please see our Value Based Flat Fees page.

Who shall I talk to?

Please contact our offices to discuss further. We are happy to help.

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