What is a Living Will in British Columbia?

We all want to have a voice in decisions about our health care. The thought of not being able to make decisions or express our wishes for medical treatment and personal care is scary. 

There are options that allow you to plan in advance. That way, your preferences are known, your wishes are respected, and the person of your choice is authorized to make decisions on your behalf. 

You have probably heard the term “living will” and may be wondering what is a living will in BC? Can a living will or other legal document help you and your close family members in the event you become incapacitated? In this blog post, we will discuss the legal documents that are necessary to achieve your advance care planning goals.

Origin and Concept of a Living Will

A living will is a written document that contains a person’s wishes regarding how they want to be treated if they are not able to give instructions or express their wishes at the time that health care is required (for example, because they are mentally incapacitated due to dementia, Alzheimer’s, serious illness, catastrophic injury, or other medical crisis).   

“Living will” is actually an American term. In British Columbia, we use “advance directives” and substitute decision-making agreements like representation agreements to achieve similar goals. While the term “living will” is not used in British Columbia’s health care consent legislation, it is generally accepted to mean a person’s written wishes for future health care.

Before we flip to using the BC terminology, let’s go through some FAQs pertaining to living wills that can be used to provide (or refuse) consent for certain health care treatments based on your beliefs, values and wishes.

Is a living will legally binding in BC?

Yes. A living will is legally valid and binding if it is prepared in accordance with the detailed requirements set out in British Columbia’s Health Care (Consent) and Care Facility (Admission) Act.  It must also be in writing and signed and dated by you, in the presence of two witnesses, and both witnesses in your presence. Only one witness is required if the witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.

Another key requirement is that you must be of sound mind to make this legal document. For that reason, it is prudent for every adult to get advance care planning documents in place as early as possible. That is especially true for people with progressive brain disorders such as Alzheimer’s disease; they should consider preparing these documents as soon as possible to avoid later problems.

How does a living will differ from a last will and testament?

A Last Will and Testament contains your instructions and wishes for your estate after you die. It deals with your property, debt, and care of minor children, among other things, and comes into effect on your death. 

Conversely, a living will sets out your instructions and wishes regarding medical treatment and personal care while you’re still alive. It is only valid during your lifetime, and it only comes into play in the event that you become mentally incapable of providing your instructions or expressing your wishes at the time that health care is required.

Can I specify any medical treatment in my living will?

Yes. You get to decide in advance what health care treatments you will or won’t accept. You can include instructions relating to future health care treatment including end of life care, palliative care, life support, and life-prolonging treatments (breathing machines, feeding tubes, cardiopulmonary resuscitation, blood transfusions, medications, etc.). Essentially, you can give or refuse consent to any health care treatment, so long as it is not an instruction prohibited by law or an instruction to omit to do anything that is required by law.

When does a living will come into effect?

The default is that an advance care planning document such as a living will becomes effective on the date the document is executed. It is possible to provide in the document that it does not become effective until a later event, but in that situation, the document must specify how the event is to be confirmed and by whom. 

Can I change or revoke my living will?

You can change or revoke an advance care planning document such as a living will at any point during your lifetime, provided you are mentally capable of understanding the nature and consequences of the change or revocation at that time. 

You can change or revoke any advance planning document by preparing a new one (e.g., a new advance directive or representation agreement—note that these documents are discussed in more detail below). You must give notice of a change or revocation to the relevant people. For example, to revoke a previous representation agreement, you must also give written notice of the revocation to each representative and each alternate representative named in that representation agreement. Revocation is effective when this notice is given, or on a later date stated in the notice.

Legal Framework in BC

Key advance planning documents

Let’s now focus on advance care planning documents using the terminology specific to British Columbia. These are the key documents that are part of a comprehensive advance care plan.

1. An Enduring Power of Attorney gives you the power to appoint a person you trust to handle your financial and legal affairs if you can’t. You can appoint a family member (e.g., your spouse, your adult child), a close friend, a professional (e.g., lawyer, notary, or accountant), or a trust company to be your attorney. A power of attorney cannot make health care decisions for you if you’re not capable of making those decisions yourself. 
2. A Representation Agreement gives you the power to appoint a person or people to make personal care and health care decisions on your behalf if you can’t (sometimes called a “healthcare proxy”). The person you appoint is your substitute decision maker for health care and personal care. It is highly recommended that you name an alternate in case the person you choose isn’t able to act on your behalf to ensure that your medical and healthcare wishes are respected. British Columbia’s Representation Agreement Act sets out all of the requirements for making a legally valid representation agreement. It is also important to note that there are two types of Representation Agreements in BC: section 9 representation agreements and section 7 representation agreements. An estate planning lawyer can help you determine which of these agreements is right for you.
3. An Advance Directive is a written instruction that gives or refuses your consent to health care in the event that you are not capable of giving the instruction at the time the health care is required. An advance care directive (sometimes called a living will or a “health care directive”) is expressed directly to your health care provider, or to your representative if you have named one in a representation agreement. An advance directive must be followed when it addresses the health care decision needed at the time. No one will be asked to make a decision for you as long as the advance directive is clear on that issue and addresses the health care treatment you need at the time. For that reason, it is crucial that your advance directive be well thought-out and detailed to address various contingencies and medical situations that may arise. If you don’t also have a representation agreement in place, a temporary substitute decision maker will have to be chosen when a health care treatment decision is needed that is not addressed by your advance directive.

The Importance of an Advance Care Plan

There are so many benefits to having an advance care plan in place. First and foremost, it gives you peace of mind. If you become incapacitated for any reason, your health care representative has the power to speak on your behalf to ensure that your medical and healthcare wishes are respected, and a person of your choosing has the power to manage your financial and legal affairs. 

These legal documents give you the opportunity to communicate your wishes and instructions to your attorney, your health care proxy, and your health care providers. These people are legally bound to take action and make decisions in accordance with your wishes if you become incapable. Having an advance care plan in place helps reduce the burden on your close family members because they will not need to argue over who should make decisions for you, and they will have clearly laid out, written instructions that must be followed. This can relieve a lot of guilt and second-guessing for family members who would otherwise be left to grapple with difficult, painful decisions such as whether to keep you alive by artificial means. 

If you don’t have these documents in place, your loved ones will have to apply to the court to be appointed committee of your person and/or of your estate. These court applications are expensive and can cause delay in handling your financial affairs and health care needs. If no close family members are available, or if there is a dispute about who is to be chosen, the Public Guardian and Trustee will become involved to make decisions on your behalf, or to appoint another person to act as temporary substitute decision maker for you. That will cost time and money, and the person appointed may not be who you would have wanted. 

Need advice on your plan for health care decisions and financial decisions?

The team at Onyx Law Group understands the unique intricacies of advance care planning. Our lawyers have the expertise to help you navigate these intricacies so you can create an advance care plan that reflects your wishes and reduces the future burden on your family.

It’s so important to discuss your wishes and instructions with a lawyer. Our experienced legal counsel can assist you with preparing legal documents that reflect your health care wishes and instructions. We can help you plan for your future and any possible incapacity you may experience, so your medical and healthcare wishes are respected and followed. We also strongly recommend that our clients consider making an enduring power of attorney for financial matters. 

 Contact our team today to schedule a consultation.