Imagine if you were to get injured and fall into a coma. What would you want your care to look like? If you didn’t wake up, how long would you want to stay on life support? Who would make decisions on your behalf?
That’s where a living will comes into play. In this article, we’ll cover everything you need to know about what they are and how you can make one, so you can feel confident that you’ll be cared for in a way that’s right for you.
What Is A Living Will?
A living will is the common term for a ‘personal directive’ or “advance directive”, which is a document that captures your wishes and preferences for medical and personal care in the event that you’re unable to advocate for yourself. In Canada, you can create one of these documents as stipulated in your province to legally appoint a caregiver to make healthcare decisions on your behalf, and provide guidance for doctors on things like whether you would or would not want to be put on life support.
Like the name suggests, a living will deals with end-of-life affairs while you’re alive (unlike a regular will which comes into effect after death). While your will is guaranteed to come into effect some day, a living will is only there if you need it.
Why Do I Need A Living Will?
You need a living will for the same reason that you need insurance. While you hope you’ll never need it, it’s important to know that you’ll be covered should the worst happen.
A living will keeps you in the driver's seat of key decisions, and prevents your loved ones from shouldering the burden of making difficult decisions in a crisis.
Living wills aren’t just for seniors considering end-of-life care. Whether a bike crash, ski accident, brain tumour, or stroke, emergencies can happen to anyone at any age, and when they do, they often leave families in crisis. When you write a living will, you’re looking out for the mental wellbeing of your loved ones as much as you’re looking out for yourself.
Living will, personal directive & power of attorney
What’s the difference between a living will and a personal directive?
Living wills, advance care directives, and personal directives are all terms used interchangeably to describe a type of document that outlines your medical wishes for the end of life. Legally speaking there is no such thing as a “living will” in Canada, even though it’s the more commonly recognized term.
To keep things interesting, every province has a slightly different legal name for this document. You’ll need to make sure you fill out the document according to the guidelines in your province, and we’ll outline how to do so later in this article.
What’s the difference between a living will and a power of attorney?
The main difference between a Power of Attorney for Personal Care and a personal directive (commonly referred to as a living will) is that the former mostly refers only to “who” will make decisions, while the latter includes “who” but also details “what” you’d like your care to look like, and “how” those decisions should be made. If you provided care instructions as part of a Power of Attorney for Personal Care, then the two documents act the same when it comes to making decisions about medical care.
Keep in mind, there are two types of power of attorney: one that makes decisions about your assets and possessions (a power of attorney for property) and one that makes decisions about your medical treatment (a power of attorney for personal care). You can appoint the same person to act in both capacities, or you can appoint them separately. Learn more about assigning power of attorney.
What To Include In Your Living Will
To write a detailed living will, you should consider including the following:
Who will make decisions on my behalf?
This person is your “attorney”, “representative”, or “proxy. Most people choose a family member such as a spouse, or an adult child.
When assigning a representative, consider:
- Proximity: ideally, you should appoint someone who lives nearby.
- Trustworthiness: choose someone whose values and decision making tends to align with your own.
- Assertiveness: this person needs to be able to advocate for you.
- Willingness: this is a big responsibility, so you need to be sure your representative is comfortable stepping into this role.
What level of authority will my representative have?
You can specify whether the decision-making powers your representative should have as:
- Specific, limited authority
- Full authority subject to your instructions
- Full authority and the ability to override your instructions
What healthcare treatments do I consent to? Which do I refuse?
This can encompass your preferences, or religious concerns. Consider the following:
- Life-prolonging medical care. This can include blood transfusions, CPR, dialysis, drugs, respirator use, and surgery.
- Food and water. Some patients can live for a long time when provided intravenous fluids. Some would want to, while others would not.
- Palliative care. This is care given to reduce pain when forgoing life-prolonging treatments.
What happens to my loved ones while I’m incapacitated?
- If you have children who are minors, you’ll want to communicate care instructions for your children while you’re incapacitated.
- This is separate from the instructions in your last will, which only comes into effect after death.
Do I Need A lawyer To Make A Living Will?
In Canada, you don’t need a lawyer to make a personal directive or “living will”. That’s by design: every adult is encouraged to create a personal directive, but not every adult has access to legal counsel. Instead, most provinces simply require that you sign the document in the presence of a witness or witnesses.
Today, it’s easier than ever to create a personal directive on your own with online tools like Willful. These tools ensure that your document is legally viable and includes all key instructions for care, offer a convenient way to store and share your legal documents, and can be easily updated if your situation changes. Willful is available in most provinces, and when you sign up to create your last will and testament with our Premium and Bundle plans, you can create a living will according to the laws in your province at no extra cost.
Many provinces also offer pre-made forms to help guide you through the process of assigning a health care proxy or writing care instructions.
Where Should I Keep My Living Will?
You should keep a copy of your personal directive in your files (whether stored online or printed out), and should ensure that your proxy/proxies also have a copy. It’s also a good idea to also provide copies to your doctor and close family members. In Quebec and Alberta, you can register your personal directive so it can easily be traced and accessed by health care providers.
How To Make A Living Will In Canada:
Every province has slightly different rules for how to write a legally recognized living will and the name for this document differs by province. Generally, each province gives you the ability to: 1) legally grant a proxy for healthcare decisions and 2) provide specific instructions for medical care.
Rest assured, these documents only ever come into effect in the event that you become incapable of communicating or advocating for yourself.
Below, we’ve outlined the specifics you’ll need to know to create a living will in your province.
How to make a living will in Ontario:
In Ontario, you can create a living will by appointing a “Power of Attorney for Personal Care” and documenting your treatment wishes as part of that, though your attorney is not obligated to follow these directions. You can follow the province’s instructions to create a document of your own, or easily create one online with Willful’s guided process.
To ensure your power of attorney document is legally viable, it needs to be dated and signed by you as well as two witnesses. Your witnesses must be 18 or older, and they cannot be your spouse, child, attorney, or your attorney’s spouse.
Who can be your Power of Attorney for Personal Care in Ontario
You can select anyone who is 16 or older to be your attorney, so long as they’re mentally capable of accepting the role, and are not paid to work for you (with the exception of family members).
Unless you give specific instructions to restrict your attorney’s powers, they’ll be able to make almost any decisions about your care that you could normally make yourself. That includes medical treatment, housing, food, hygiene, clothing, and safety.
You may appoint more than one attorney, but it’s generally not a good idea. When you name multiple attorneys, by default they each need to agree on every decision which can be difficult in crisis. You can indicate that the attorneys can have the ability to make decisions independently if the other(s) are not available, but again, this often complicates the decision-making process.
How to make a living will in BC:
In British Columbia, you can legally appoint someone to make care decisions on your behalf through a “Representation Agreement” and can outline additional specific care wishes in an Advance Care Plan.
You can create a Representation Agreement conveniently online with Willful, or can fill our the province’s Representation Agreement form which must be witnessed by two individuals (so long as they are over 18, and not your spouse or child) or it by a lawyer or notary.
Who can be your representative in BC
Anyone can be your care representative so long as they’re 19 or older and capable of independent decision making. You can appoint more than one representative, however this can complicate decision-making in times of crisis as all representatives must agree on decisions unless you specifically give them permission to act independently.
If you do not appoint a legal representative through a Representation Agreement, a Temporary Substitute Decision Maker would be appointed on your behalf in an emergency. Typically, that would be (in order of priority) your spouse, son or daughter who is over 18, parent, sibling, grandparent, grandchild, relative, or close friend.
How to make a living will in Alberta:
If you live in Alberta, you can make a “personal directive” to outline your care wishes and grant legal decision-making authority to an agent or agents.
This document can cover specific instructions on:
- medical treatments you would or would not want
- where you would like to live
- who you would like to live with
- who will care for your children (if minors)
- other preferences as well as personal and legal decisions
The government offers a form that you can fill out to complete your personal directive, or you can create one conveniently online with Willful.
Your personal directive becomes legally binding once it is signed by you and an eligible witness. While not necessary, it’s also a good idea to register your personal directive with the Office of the Public Guardian and Trustee (OPGT) so that healthcare providers can easily find your agent(s) should something happen to you.
Who can be your agent in Alberta
Anyone who is 18 or older can be your agent, so long as they have the mental capacity to make decisions on your behalf. You can name a primary agent and one or more alternative agents if the primary is unavailable. It’s also to assign joint decision making to multiple agents. If you choose to do so, you may wish to specify which decision-making areas each will oversee, otherwise they must agree on all decisions jointly (which can be difficult in times of crisis).
How to make a living will in Saskatchewan:
In Saskatchewan you can grant a legal decision-making proxy and outline your healthcare choices through an “Advance Care Directive”.
You can purchase a form from the province, or complete your Advance Care Directive conveniently online with Willful. It becomes legally binding once signed by you and an eligible witness who is not your spouse.
Who can be your healthcare proxy in Saskatchewan
You may appoint anyone who is 18 or older as your proxy, so long as they’re capable of making decisions on your behalf. You can appoint multiple proxies to act successively (if the first person listed first isn’t available, the second would step in), or jointly. If proxies are appointed jointly, they’ll need to agree on decisions, which can be complicated in times of crisis.
How to make a living will in Manitoba:
In Manitoba, you can appoint a legal proxy to make decisions on your behalf and outline your care preferences through a “Health Care Directive”. The government of Manitoba offers a form that you can fill out and sign to assign a proxy with no witness required.
The form doesn’t provide specific instructions about what to include in your care instructions, so you may want to consider the guidance we provided earlier in this article, or you can create your Health Care Directive online with Willful, and we’ll walk you through the important decisions to include.
Who can be a health care proxy in Manitoba
You can appoint one or more proxies, so long as they’re over 18 and mentally capable of making decisions on your behalf. If you appoint more than one, you’ll need to specify whether they should work independently or jointly. If you’d like them to work independently, the first proxy listed will have complete decision making powers unless they are unavailable, in which case the next proxy will be contacted. If you specify that they should work jointly, they’ll need to agree on decisions, which isn’t always easy in a crisis.
How to make a living will in New Brunswick:
In New Brunswick, the closest equivalent to a living will is an advance health care directive, which allows you to assign a decision-making proxy and outline your medical care preferences. According to New Brunswick law, your proxy’s decision making powers are limited to health care decisions, so you may also wish to appoint a Power of Attorney for Personal Care who can make decisions about your broader personal care, such as your living situation. This can be the same person, or a different person.
The health care directive becomes legally valid once signed by you in the presence of a witness. That witness must be 19 or older and cannot be your spouse or the proxy or their spouse.
Who can be a health care proxy in New Brunswick
Anyone 19 years of age or older can be your proxy. You can name more than one proxy, but any additional proxies listed will only gain decision-making capabilities if your primary proxy is unavailable.
How to make a living will in Nova Scotia:
In Nova Scotia, you can make a Personal Directive that includes a delegate in the event that you’re unable to make your own decisions. This document also lets you capture instructions that your care provider will follow, regardless of whether or not you’ve named a delegate. You can include instructions on health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, and support services within this document.
You can create your Personal Directive by filling out a form provided by the province. The document must be signed by you in the presence of a witness who cannot be your delegate or your delegate’s spouse.
Who can be a health care delegate in Nova Scotia
Anyone 19 or older can be your delegate, and you can name different people as delegates for different types of decisions. You cannot name joint delegates for joint decision-making.
If a delegate isn’t specifically named, your health care provider will find someone to act on your behalf. In order of priority that person could be your spouse, adult child, parent, sibling, grandparent, grandchild, aunt or uncle, niece of nephew, or another relative.
How to make a living will in Newfoundland and Labrador:
In Newfoundland, you can make an Advance Health Care Directive to provide instructions for your health care and can assign a substitute decision maker. Your health care provider must follow your written instructions, but if they are not clear or complete, your substitute decision maker will make decisions based on their understanding of your wishes.
To be legally valid, the directive must be signed by you in the presence of two witnesses, so long as those witnesses are not your substitute decision maker or their spouse.
Who can be a substitute decision maker in Newfoundland
Your substitute decision maker must be 19 or older and they must indicate that they accept the appointment in writing. You can assign more than one substitute so that if the first person listed is unavailable, the next person would step into the role. If you’d like to stipulate that your substitutes must make joint decisions in agreement with one another, you should indicate that specifically.
How to make a living will in PEI
In PEI, you can fill out a Health Care Directive form to delegate a proxy and capture your care instructions. Your directive should be signed by you in the presence of a witness, and signed by your proxy /proxies. The witness can’t be your proxy or proxy’s spouse.
Who can be a health care proxy in PEI
In PEI, a health care proxy must be 18 years or older. You can assign more than one proxy to act in succession (so, if the first is not available, the second would be contacted) or jointly. A word of caution: assigning joint proxies can make decision-making more difficult in crisis if they do not agree.
How to make a living will in Quebec:
In Quebec you can communicate your care wishes through an advance medical directive. Unlike in all other provinces, this document does not include a proxy decision maker. To assign a proxy, you’ll also need to also prepare a protection mandate, which must be signed by two witnesses who are not your mandatary or a substitute mandatary.
Willful currently does not service Quebec, but you can create your medical directive by filling out this form. Once completed, you will need to sign the form and have it signed by two witnesses 18 or over. The witnesses must sign in your presence. Once the form is signed, it should be mailed to the following address to be included in the provincial registry:
Régie de l’assurance maladie du Québec
C. P. 16000, succ. Terminus
Québec (Québec) G1K 9A2
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