Personal Directives in Nova Scotia: Delegates, Witness, Effect

Marguerite, 64, builds sails in a loft on the Lunenburg waterfront and has two grown sons with very different strengths. Luc is a paramedic in Bridgewater who stays calm in a hospital corridor. Thomas manages a few rental cottages and knows every housing option on the South Shore. Over Sunday supper she tells them she wants both involved if she ever can't make her own personal-care decisions, and asks whether that means they would have to agree on everything. Nova Scotia's Personal Directives Act answers in an unusual way: a directive that appoints two or more delegates has to give each of them authority over different matters.^[NaN] So Luc takes health care, and Thomas takes the question of where she lives.

Her question is a good way into how Nova Scotia handles this document. The province calls it a personal directive, the people named in it are delegates, and the statute behind it is short. This guide covers the main rules. How the other provinces name and handle these documents is set out in our national overview of personal-care powers of attorney.

What a Nova Scotia personal directive can do #

Section 3(1) of the Act allows a person with capacity to make a personal directive that does one or both of two things:

• sets out instructions, or an expression of the maker's values, beliefs and wishes, about future personal-care decisions to be made on their behalf; and
• authorizes one or more persons to act as delegate and make personal-care decisions on the maker's behalf.^[NaN]

That gives a maker room to shape the document. Someone who mainly wants their wishes on record can focus on the first part. Someone who wants a named person at the bedside can focus on the second. A directive can also do both, so the delegate has authority and guidance in the same pages.

Money and property sit under a different statute. Nova Scotia's Powers of Attorney Act defines a power of attorney as a document giving an attorney authority to act for the donor in matters of property and finances.^[NaN]

Capacity, not a birthday #

The Act measures the maker by capacity. Section 2(a) describes capacity as the ability to understand information relevant to making a personal-care decision, and the ability to appreciate the reasonably foreseeable consequences of a decision or of not making one.^[NaN] Section 3(1) refers to a person who has capacity and does not state an age.

Delegates are treated differently. Under s. 3(1)(b), a delegate generally has to be of the age of majority, except in the case of a minor spouse.^[NaN]

Two delegates means two different jobs #

This is where Nova Scotia parts ways with what many families expect. Section 3(5) says a personal directive that appoints two or more delegates must assign to each of them authority over different matters.^[NaN] Naming two siblings to decide everything "together" does not fit that wording.

In practice, the rule nudges a maker to think in categories, as Marguerite did: one delegate for health-care decisions, another for decisions about where she lives. A split like that can also ease pressure inside a family, because each delegate knows which questions belong to them.

Drawing the line takes some thought. If one delegate holds health care and another holds living arrangements, a move into a care home may touch both, so the wording of each delegate's area deserves care. Describing each area plainly, and telling both delegates what the other one covers, leaves less room for confusion later. It also helps to sit down with both of them, as Marguerite did over supper, so neither learns about the arrangement for the first time from a piece of paper.

Paid caregivers and a change in marital status #

Two more rules shape who can act.

First, under s. 3(4), a person who provides personal-care services to the maker for compensation generally may not act as delegate. There are two exceptions: the person is the maker's spouse or a relative listed in the Act, or the maker specifically authorizes those paid services in the personal directive.^[NaN] The second exception is distinctive. A maker who does want a paid caregiver in the role can say so expressly.

Second, s. 6 deals with separation. Unless the directive expressly provides otherwise, if the maker's spouse is appointed as delegate and later is no longer a spouse, that appointment is revoked.^[NaN] A maker who wants a former spouse to stay on would need to write that into the document.

Both rules reward a second look at the directive whenever circumstances change. A caregiver who becomes part of the household, or a marriage that ends, can quietly alter who is able to act, even though nobody has touched the pages since the day they were signed.

Signing it: one witness, with limits #

Section 3(2) requires a personal directive to be in writing, dated and signed by the maker. Where the maker is unable to sign, someone who is not a delegate or a delegate's spouse may sign on the maker's behalf, at the maker's direction and in the maker's presence. Either way, the signing happens in the presence of a witness who must also sign.^[NaN]

Section 3(3) then limits who that witness can be. The witness generally may not be:

• a delegate;
• a spouse of a delegate;
• a person who signs on behalf of the maker; or
• the spouse of a person who signs on behalf of the maker.^[NaN]

One witness is what the Act asks for. The list does not name the maker's own spouse, although a spouse who is also a delegate would be excluded in that role.

When a directive speaks, and when it stays quiet #

Section 9 says a personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.^[NaN] Section 12(1)(a) adds the other side: the directive has no effect for a personal-care decision whenever the maker has capacity.^[NaN]

The word "whenever" carries weight. Read together, these sections suggest a directive can come into play and step back again as a maker's capacity changes, decision by decision. A person recovering from an illness may need a delegate for one stretch and then take decisions back afterwards.

Revoking or replacing a directive #

The Act gives a maker who has capacity two ways to cancel a directive:

• a revocation in writing, executed in the same way as the personal directive (s. 12(1)(c)); or
• destroying the originals of the directive with the intention of revoking it (s. 12(2)).^[NaN]

A directive also stops having effect on the maker's death (s. 12(1)(b)) and on a court determination that it ceases to have effect (s. 12(1)(d)).^[NaN] Someone who wants to update their choices rather than drop them altogether can revoke the old directive and sign a fresh one, following the same signing rules each time.

Putting the directive next to your Nova Scotia will #

A personal directive covers decisions during life; a will covers what happens to your estate afterwards. Both are worth a fresh look when life shifts, such as a separation or a move. Our Nova Scotia will guide sets out the province's signing rules for wills, and the Nova Scotia will page collects the provincial basics. For the court side of an estate, our Nova Scotia probate fees explainer and the probate fee calculator give a sense of what lies ahead.

When you are ready to work on the will itself, you can start your will with It's Simple Will and come back to it whenever it suits you.