The author would like to thank Gillian Bourke and Sheila MacPherson for their assistance in preparing this commentary.
Most provinces and territories have passed legislation recognizing and regulating personal directives in their jurisdictions. The sole exception is Nunavut, which as of 2022 does not have its own personal directives legislation. Because of this, it is not possible for a person living in Nunavut, or a person who becomes incapacitated while visiting Nunavut, to be confident that their instructions will be legally enforceable in the territory.
It is important for any Nunavummiut who is interested in estate planning to understand how the elements of a personal directive operate in the absence of governing legislation.
Although there is a legislative gap, Nunavummiut who prepare a personal directive may still benefit in a variety of ways. Writing down your instructions and wishes in a personal directive may still benefit you should you find yourself in need of one.
Elements of a Personal Directive
A personal directive generally comprises two distinct but important elements. The first is an agent designation, where you appoint an individual to make non-financial decisions on your behalf in the event that you become incapacitated. The decisions your agent can make include any decisions related to your healthcare, as well as decisions such as where you will live and with whom you may associate. The second element of a personal directive is a statement of your wishes and directions with respect to your end-of-life healthcare, which is often referred to as a “living will.” Your wishes will help guide your agent and your doctors in making informed decisions on your behalf. How the common law treats these two elements in the absence of applicable legislation differs significantly, however both still have their uses.
Without legislation to recognize such a designation, an agent designation in a personal directive is not enforceable in Nunavut. This means that, should your agent seek to make a decision on your behalf solely based on your personal directive, your doctor is not obligated to listen to them. Currently, the only method for someone to obtain substitute decision-making authority on your behalf is by obtaining a guardianship order under the Guardianship and Trusteeship Act. This can be a timely and expensive process.
Your agent designation can, however, play a crucial role in securing such an order. When deciding whom to appoint as your guardian, the Court must give special consideration to your wishes. By naming a person or persons as your agent in a personal directive, you provide the Court with an important piece of evidence that would assist a judge in making an order appointing your chosen agent as your guardian, and therefore empowering them to make decisions on your behalf. Further, as will be discussed below, an agent designation may be enforceable in other jurisdictions should you have to travel outside of Nunavut to obtain medical treatment.
Statement of Wishes and Directions
A Court is far more likely to find your statement of wishes and directions enforceable. This is because the common law recognizes that advanced medical instructions are valid in most situations. A doctor cannot ignore your advance directions if they are aware of them, just as they could not disregard your directions had you been able to provide them yourself.
Your doctor may be hesitant to act based on a piece of paper which purports to be your explicit directions; after all, in an emergency they would not have time to determine whether the document is authentic or accurate. This is where the formalities inherent to a personal directive may assist you. Generally speaking, such formalities, like ensuring that your document is signed and dated by both yourself and a witness, may help convince your doctor that your directions are accurate and should be followed. In addition, the process itself of creating a personal directive, which includes sitting down with your agent and family to discuss your wishes and directions, will also provide your loved ones with evidence that the directions in your personal directive are accurate, which will also help your doctor recognize your directions as authentic.
Your directions will also influence the decisions of your guardian, should someone obtain a guardianship order on your behalf. By law, if your guardian is aware of your directions, they must make decisions on your behalf in accordance with them; they cannot substitute your directions with their own discretion. If your guardian must make a decision on something that your personal directive does not contemplate, they must make the decision they feel is in your best interest. In deciding what that is, your guardian must consider your values and beliefs, which your personal directive will reflect.
Personal Directives and Medical Travel
Medical travel remains a fixture in the lives of many Nunavummiut, who often need to travel south when their healthcare needs are more complex. For instance, Nunavummiut in the Kitikmeot Region often travel to Yellowknife or Edmonton, while those from the Baffin Region may find themselves in Winnipeg or Ottawa. While your personal directive may not be recognized in Nunavut, it may be recognized in the jurisdiction to which you travel. The personal directive legislation in every province and territory includes provisions governing the validity of foreign personal directives. Many jurisdictions do not require a personal directive to be valid under the laws of Nunavut for it to be enforceable there. According to the legislation of Alberta, Manitoba, and the Northwest Territories, for instance, a personal directive from Nunavut will be valid so long as it adheres to the same formalities as a personal directive created in that respective jurisdiction. Therefore, by preparing your personal directive in adherence to the legislation of the jurisdiction where you anticipate to travel for medical care, you may ensure that it will be valid and that your agent will be entitled to make your healthcare decisions.
It is important to note, however, that these provisions differ across the country. In Ontario, for example, a foreign personal directive is only valid if it is valid under the laws of the place where it is signed. Since Nunavut does not have applicable legislation, a personal directive created in Nunavut cannot be valid in Ontario, however, it could provide important evidence as to your wishes which, practically speaking, should be considered. Should you wish to prepare a personal directive for use in another jurisdiction, it is crucial to review the applicable legislation to determine whether it is possible.
Although the current gap in legislation hinders the effectiveness of personal directives in Nunavut, they remain a core aspect of a comprehensive estate plan. If you are interested in obtaining a personal directive, or any other estate documents, please do not hesitate to reach out to a member of our Estate Planning and Litigation Group.
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