Advance Health Care Directives in Newfoundland and Labrador

Cyril, 73, fished out of Bonavista for most of his working life, and his daughter Rosalind teaches high school in St. John's. During her Thanksgiving visit he hands her a few handwritten pages about the care he would and would not want, and asks whether she will be the one to speak for him if it ever comes to that. She says yes, and then does something that surprises him: she writes a short note of her own saying she accepts the appointment, and signs it. Newfoundland and Labrador's Advance Health Care Directives Act asks for exactly that, since a substitute decision maker is to indicate in writing their acceptance of the appointment.^[NaN]

That small step is easy to miss, and it is one of several features that set this province's directive apart. This guide walks through who can make one, who can be named, how it is signed and witnessed, and how it ends. Readers comparing provinces can start with our Canada-wide look at personal-care powers of attorney.

Instructions, a decision maker, or both #

The Act defines an advance health care directive as a document in which a maker sets out instructions or general principles about their health care treatment, or appoints a substitute decision maker, or both (s. 2(a)).^[NaN] Under s. 3(1), a competent person may make one setting out instructions about their treatment, or general principles about the type of health care they want.^[NaN]

The "general principles" option deserves attention. A maker does not have to predict every treatment. They can describe what matters to them, such as comfort or staying close to home, and trust a named person to apply it to situations nobody foresaw.

Cyril's pages mixed the two. He listed a couple of treatments he had firm views on, after watching his own father's last years, and then wrote a few lines about what a good day looks like to him: a window facing the water, a visit from his grandchildren, the radio on. Rosalind said afterwards that the second part was the more useful of the two, because it told her how he thinks rather than only what he decided. Instructions and principles can sit side by side in the same document, and the Act's definition allows for both.

Competence and the age presumption #

The Act speaks of competence rather than a fixed age. Section 7 sets up presumptions that apply in the absence of evidence to the contrary: a person who is 16 or older is presumed competent to make health care decisions, and a person younger than 16 is presumed not to be.^[NaN]

Because these are presumptions, evidence can displace either one. A 16-year-old is not automatically capable, and a 15-year-old is not automatically incapable. The presumption simply decides where the starting point sits.

Naming a substitute decision maker #

Section 3(2) lets a person who is competent to make a health care decision appoint a substitute decision maker to decide on the appropriate health care for them. The substitute decision maker shall be at least 19 years of age.^[NaN] And, as Rosalind's note showed, s. 3(3) says the substitute decision maker shall indicate in writing their acceptance of the appointment.^[NaN]

The age of 19 lines up with the minimum the province sets for an attorney named in an enduring power of attorney, which deals with property rather than health care (Enduring Powers of Attorney Act, s. 3(2)).^[NaN] The two documents run on separate statutes, so a person planning ahead may want to look at both.

The written acceptance in s. 3(3) is worth treating as more than a formality. Asking someone to sign it is a natural moment to check that they understand the role, have read the directive and are willing to carry it out even where they might choose differently for themselves. Keeping the signed acceptance with the directive means anyone who later reads the document can see that the person named agreed to the job.

Signing and the two-witness rule #

Section 6(1) says an advance health care directive shall be in writing, witnessed by "at least 2 independent persons" and signed by the maker.^[NaN] The Act does not define "independent," and this guide does not try to. A maker who is unsure whether a particular witness qualifies may want advice before signing rather than after.

The Act is more specific where the maker cannot sign. Under s. 6(2), someone else may sign in the maker's presence and at the maker's direction. In that case:

• the person signing shall not be the substitute decision maker or the spouse of the substitute decision maker;
• the maker acknowledges the signature in the presence of at least 2 independent witnesses, neither of whom shall be the substitute decision maker or that person's spouse; and
• the witnesses attest and subscribe the directive in the maker's presence.^[NaN]

Those exclusions are the ones the Act names for the signed-by-another case. They should not be read as the full meaning of "independent" in s. 6(1).

The witnessing here asks for more than the province's enduring power of attorney for property, which is witnessed by a person who is not the named attorney or that person's spouse or cohabiting partner (Enduring Powers of Attorney Act, s. 3(1)).^[NaN] Someone signing both documents on the same day may find it simplest to arrange two suitable witnesses for the whole sitting.

When the directive takes effect #

Under s. 4, a directive and the authority of a substitute decision maker become effective when the maker ceases to be competent to make and communicate health care decisions, and they continue to be effective for the duration of that period.^[NaN]

The authority is tied to the maker's condition, not to a date on a calendar. While the maker is competent, the directive sits in the background and decisions stay with them. That is one reason to give the substitute decision maker a copy well ahead of time: the day they need it is unlikely to be a day when the maker can explain where the original is kept.

Revoking a directive #

So long as the maker is competent to make health care decisions, s. 8(1) allows a directive to be revoked by:

• a later health care directive;
• a later writing, signed by the maker, declaring an intention to revoke it and executed in the manner a directive has to be executed; or
• burning, tearing or otherwise destroying the directive, by the maker or by another person in the maker's presence and at their direction, with the intention of revoking it.^[NaN]

The second route carries the same witnessing requirement as the original, because a written revocation is executed like a directive. A maker who simply wants a different substitute decision maker may find it cleaner to make a new directive that replaces the old one.

Pairing the directive with your will #

An advance health care directive speaks while you are alive; your will speaks afterwards. Both benefit from the kind of unhurried conversation Cyril and Rosalind had. Our Newfoundland and Labrador will guide covers the province's will rules, and the Newfoundland and Labrador will page collects the basics. For what an estate may later face in court, see our Newfoundland probate fees explainer or try the probate fee calculator.

When the will is next on your list, you can start writing it with It's Simple Will.