Health Care Directives in Saskatchewan: Proxies and Signing

Joan spent thirty-one years as a surgical nurse in Saskatoon, so when she decided at 68 to put her own treatment wishes on paper, she did it the way she used to chart: a few plain pages at the kitchen table, a cup of coffee going cold, her son Daniel reading over her shoulder. When she finished, she asked him to go and fetch two neighbours to witness her signature. Daniel had looked it up the night before. Under Saskatchewan's health care directive legislation, a witness enters the picture when someone else signs for the person making the directive, not when that person signs it herself.^[NaN] Joan signed and dated it, and named Daniel as her proxy.

Her instinct to round up witnesses is common, and it comes from wills and powers of attorney, where witnesses carry more weight. Saskatchewan's directive rules are lighter in some places and stricter in others. This guide works through them. If you want to compare Saskatchewan with its neighbours, our overview of personal-care documents across Canada lines the provinces up side by side.

The Act and the document it creates #

The statute is The Health Care Directives and Substitute Health Care Decision Makers Act, 2015. It uses the term "directive," and a directive may name a "proxy" who makes health care decisions for the person who made it.^[NaN]

Saskatchewan has a separate statute for other kinds of decisions. Under The Powers of Attorney Act, 2002, a grantor may appoint a personal attorney, a property attorney, or both (s. 4.1(1)).^[NaN] Health care decisions are dealt with through the directive, which is why a Saskatchewan resident planning ahead may end up with more than one document.

One detail in the power of attorney statute is easy to overlook. For an enduring power of attorney granted on or after the date s. 4.1 came into force, unless the document states otherwise, the person appointed is both the grantor's personal attorney and property attorney (s. 4.1(3)).^[NaN] Someone who wants one person handling money and another handling personal matters would need to say so in that document. The directive's proxy is a separate appointment again, so it is worth checking that the names in each document fit together the way you intend. Our article on the Saskatchewan power of attorney witness certificate covers the more demanding signing rules on that side.

Sixteen and capable #

Section 3 says any person 16 years of age or more who has the capacity to make a health care decision may make a directive.^[NaN] Both halves of that sentence count. Age alone is not enough, and the capacity in question is capacity to make a health care decision.

That threshold is lower than many people expect, and lower than the adult age the Act uses for proxies.

Choosing a proxy #

The Act defines an adult as a person 18 years of age or more (s. 2(1)). Under s. 11(1), a proxy generally must be an adult and must have the capacity to make health care decisions.^[NaN] Section 11(2) makes one narrow exception: a married person who is not yet an adult, but who has capacity to make health care decisions, may be appointed as proxy for their spouse.^[NaN]

The Act also points the proxy toward how to decide. Section 12 opens by directing a proxy to act according to the wishes the person expressed while they had capacity, if the proxy knows those wishes, or otherwise according to what the proxy believes to be in the person's best interests.^[NaN] The section says more than this summary covers, but its starting point is plain: where the maker's wishes are known, the proxy follows them.

That is a strong reason to write wishes down and talk them through. A proxy who has read a clear directive is far better placed to follow the first branch of s. 12 than one left to guess.

Joan's pages were short but specific. She described the situations she had seen most often on the ward and said, in her own words, which kinds of treatment she would want tried and which she would rather not have. She also wrote a paragraph about the things that matter to her apart from treatment, such as being near her garden. None of that is required by the Act, but it gives Daniel something concrete to hold on to if he is ever asked to decide.

Signing: what the Act asks for #

Section 6(2) says a directive is not valid unless it is in writing, and dated and signed either by the person making it, or at that person's direction and in their presence by someone other than a proxy appointed in the directive or the proxy's spouse.^[NaN]

The witness rule in s. 6(3) attaches only to that second route. When someone else signs:

• the person making the directive acknowledges the signature in the presence of a witness who is not a proxy appointed in the directive or the proxy's spouse; and
• the witness signs the directive as a witness in the presence of the person making it.^[NaN]

So a maker who signs personally is not required by s. 6 to have a witness. Some people choose to add one anyway, for their own peace of mind, but the Act does not demand it in that case.

When the directive starts and stops #

A directive does not take over while the maker can still decide. Under s. 4(1), it takes effect when the person who made it does not have the capacity to make a health care decision respecting a proposed treatment. Under s. 4(2), it remains in effect until that person recovers the capacity to make such a decision.^[NaN]

The reference point is "a proposed treatment." The wording looks at the decision in front of the care team rather than at the person's capacity in general. A directive can therefore come into play for one decision while the maker keeps control of others.

Revoking or changing it #

Saskatchewan's revocation rules are broad. Under s. 7(1), the person who made the directive, or someone else at that person's direction and in their presence, may revoke it:

• orally;
• in writing;
• by destroying the directive; or
• by making a new directive.^[NaN]

Because an oral revocation is possible, a maker who changes their mind should tell the proxy and their care providers clearly. Replacing the old document with a new one leaves the least room for doubt about which wishes count.

Section 7(2) adds a rule about spouses. Unless the directive states otherwise, the appointment of a spouse as proxy is revoked if the marriage is terminated by divorce, or found to be void or declared a nullity by a court in a proceeding to which the maker is a party.^[NaN]

The directive and your Saskatchewan will #

A health care directive deals with treatment while you are alive; a will deals with your estate after death. People who are sorting out one often take the chance to review the other. Our Saskatchewan will guide explains the province's will-making rules, and the Saskatchewan will page gathers the basics in one place.

If you would like to get the will under way next, you can create your will with It's Simple Will whenever you are ready.