BILL NO. 163
(as passed)
2nd Session, 60th General Assembly
Nova Scotia
57 Elizabeth II, 2008
Personal Directives Act
CHAPTER 8 OF THE ACTS OF 2008
The Honourable Cecil P. Clarke
Minister of Justice
First Reading: May 9, 2008 (LINK TO BILL AS INTRODUCED)
Second Reading: May 23, 2008
Third Reading: May 26, 2008
Royal Assent: May 27, 2008
An Act Respecting Personal Directives
Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Personal Directives Act.
(a) "capacity" means the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision;
(b) "common-law partner" of an individual means another individual who has cohabited with the individual in a conjugal relationship for a period of at least one year;
(c) "continuing-care home" means any facility licensed under the Homes for Special Care Act, any facility for which a resident may be approved for admission by the Department of Health or the Department of Community Services and any facility prescribed by the regulations;
(d) "court" means the Supreme Court of Nova Scotia;
(e) "delegate" means a person authorized under a personal directive to make, on the maker's behalf, decisions concerning the maker's personal care;
(f) "health-care decision" includes instructions, consent and refusal and withdrawal of consent with respect to health care;
(g) "health-care provider" includes a person licensed or registered under Provincial legislation to provide health care;
(h) "home-care services" includes health-care services and support services provided to a person in the person's own home or while resident in a continuing-care home where the need for services is assessed by a person licensed or registered under Provincial legislation to provide health care or a person authorized by the Minister of Health or the Minister of Community Services to perform need assessments;
(i) "maker" means a person who makes a personal directive;
(j) "nearest relative" means, with respect to any person, the relative of that person first listed in the following subclauses:
who, except in the case of a minor spouse, is of the age of majority;
(k) "person represented" means a person on whose behalf decisions are made by a statutory decision maker;
(l) "personal care" includes, but is not limited to, health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services and any other personal matter that is prescribed by the regulations;
(m) "spouse" means, with respect to any person, a person who is cohabiting with that person in a conjugal relationship as married spouse, registered domestic partner or common-law partner;
(n) "statutory decision-maker" means a nearest relative or the Public Trustee authorized under Section 14.
3 (1) A person with capacity may make a personal directive
(a) setting out instructions or an expression of the maker's values, beliefs and wishes about future personal-care decisions to be made on his or her behalf; and
(b) authorizing one or more persons who, except in the case of a minor spouse, is or are of the age of majority to act as delegate to make, on the maker's behalf, decisions concerning the maker's personal care.
(2) A personal directive must be in writing, be dated and be signed by the maker or, where the maker is unable to sign, by a person who is not a delegate or the spouse of the delegate on behalf of the maker at the maker's direction and in the maker's presence, and in the presence of a witness who must also sign.
(3) The signing of a personal directive must be witnessed by someone other than 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.
(4) A person may not act as a delegate under a personal directive if the person provides personal-care services to the maker for compensation unless
(a) the person is the maker's spouse or a relative listed in clause 2(j); or
(b) the personal-care services for compensation provided by the person are specifically authorized by the maker in the personal directive.
(5) A personal directive that appoints two or more delegates must assign to each of the delegates authority with respect to different matters.
(6) An alternative delegate named in a personal directive has authority to act if a delegate
(e) becomes incapable of acting as delegate for personal care;
(f) has his or her authority removed by the court; or
(g) as otherwise provided in the personal directive.
4 (1) A person may make more than one personal directive.
(2) Where the provisions of two personal directives cannot reasonably be reconciled, to the extent they conflict the later provision will prevail.
5 (1) A personal directive is subject to the conditions and restrictions that are contained in the personal directive and this Act.
(2) In a personal directive the maker may
(a) identify persons with whom the delegate is to consult in making a personal-care decision;
(b) identify any persons who are to be notified and any persons who are not to be notified of the coming into effect of the personal directive;
(c) identify any nearest relatives or other relatives who are not to act under Section 14.
(3) An instruction in a personal directive that is prohibited by law is void.
6 Unless a personal directive expressly provides otherwise, where, after making a personal directive in which the maker's spouse is appointed as delegate, the spouse is no longer a spouse, the appointment of the spouse as delegate is revoked.
7 A delegate may not delegate decision-making authority under a personal directive to another person unless the personal directive authorizes such delegation.
8 A delegate is not entitled to receive any remuneration for exercising any authority under a personal directive unless the personal directive so provides.
9 A personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.
10 (1) A personal directive may name a person, by name, title or position, with whom the person making an assessment of the capacity of the maker is to consult in making the assessment.
(2) A delegate, statutory decision-maker, nearest relative, health care provider, person in charge of a home-care services provider or person in charge of a continuing-care home in which a maker or person represented resides may request an assessment of capacity of a maker or person represented.
(3) A maker or person represented may request a reassessment of capacity.
(4) A person assessing capacity of a maker or person represented has the right to all medical information and documents relevant for the purpose of making the assessment.
(5) A person who has custody or control of any information or document referred to in subsection (4) shall, at the request of the person assessing capacity, disclose that information.
11 (1) Where a person has made a personal directive and there is a reasonable basis to believe that the maker lacks capacity to make the decision to leave the Province, a police officer may use force that is necessary and reasonable in the circumstances to prevent the maker from leaving the Province until an assessment of capacity can be completed.
(2) An assessment under subsection (1) must be completed as soon as is practicable.
(3) No action lies against a delegate, a police officer or any other person assisting the delegate or the police officer arising from the use of force that is authorized by this Act.
12 (1) A personal directive has no effect
(a) in respect of a personal-care decision, whenever the maker has capacity;
(c) when the personal directive is revoked by a maker who has capacity and makes the revocation in writing, executed in the same way as the personal directive; or
(d) on a determination by the court that the personal directive ceases to have effect.
(2) Notwithstanding clause (1)(c), a maker with capacity may revoke a personal directive by destroying the originals of the personal directive with the intention of revoking the personal directive.
13 A delegate's authority under a personal directive ceases
(a) when the delegate resigns, dies or lacks capacity to make personal-care decisions on behalf of the maker;
(b) when the maker revokes the delegate's authority pursuant to clause 12(1)(c) or subsection 12(2); or
(c) on a determination by the court that the delegate's authority ceases.
14 (1) Subject to the Hospitals Act, the Involuntary Psychiatric Treatment Act, clause 5(2)(c) and subsection 22(2), where a person who lacks capacity to make decisions regarding health care or a decision to accept an offer of placement in a continuing-care home or regarding home-care services has not made a personal directive authorizing a delegate or setting out instructions or wishes regarding
(b) a decision to accept an offer of placement in a continuing-care home; or
and does not have a guardian with authority to make such decisions, health-care decisions, a decision to accept an offer of placement in a continuing-care home and home-care services decisions may be made on behalf of the person by
(d) the nearest relative who has capacity and is willing to make the decision; or
(e) where there is no nearest relative who has capacity and is willing to make the decision, the Public Trustee.
(2) A nearest relative shall not exercise the authority given by subsection (1) unless the nearest relative
(a) excepting a spouse, has been in personal contact with the person over the preceding twelve-month period or has been granted a court order to shorten or waive the twelve-month period;
(b) is willing to assume the responsibility for making the decision;
(c) knows of no person of a higher rank in priority who is able and willing to make the decision; and
(d) makes a statement in writing certifying the relationship to the person and the facts and beliefs set out in clauses (a) to (c).
15 (1) Subject to the Hospitals Act and the Involuntary Psychiatric Treatment Act, all decisions made by a delegate must be made in accordance with subsection (2).
(2) In making any decision, a delegate shall
(a) follow any instructions in a personal directive unless
(ii) technological changes or medical advances make the instruction inappropriate in a way that is contrary to the intentions of the maker, or
(iii) circumstances exist that would have caused the maker to set out different instructions had the circumstances been known based on what the delegate knows of the values and beliefs of the maker and from any other written or oral instructions;
(b) in the absence of instructions, act according to what the delegate believes the wishes of the maker would be based on what the delegate knows of the values and beliefs of the maker and from any other written or oral instructions; and
(c) where the delegate does not know the wishes, values and beliefs of the maker, make the personal-care decision that the delegate believes would be in the best interests of the maker.
(3) Subject to the Hospitals Act and the Involuntary Psychiatric Treatment Act, all decisions made by a statutory decision-maker must be made in accordance with subsection (4).
(4) A statutory decision-maker shall
(a) act according to what the statutory decision-maker believes the wishes of the person represented would be based on what the statutory decision-maker knows of the values and beliefs of the person represented and from any other written or oral instructions; and
(b) where the statutory decision-maker does not know the wishes, values and beliefs of the person represented, make the personal-care decision that the statutory decision-maker believes would be in the best interests of the person represented.
16 A delegate or statutory decision-maker has no authority to make decisions relating to health care prescribed in the regulations unless the personal directive contains instructions or expressions of wishes that enable the delegate or statutory decision-maker to do so.
17 A delegate or statutory decision-maker has the right to access and to be provided with the information and records, including information and records subject to privilege, pertaining to the maker or person represented that are relevant to a decision to be made.
18 (1) Before seeking a decision of a statutory decision-maker in relation to a health care decision for a person, a health-care provider must inquire whether the person has made a personal directive.
(2) Where a health-care provider is aware that a personal directive exists for a maker, the health-care provider shall request a copy of a personal directive and, upon receipt, include it in the maker's health record.
(3) A health-care provider shall follow
(a) any instructions by a delegate acting in accordance with this Act;
(b) where there is no delegate, the instructions or an expression of the maker's wishes contained in a personal directive; or
(c) where there is no applicable personal directive, any instructions by a statutory decision-maker acting in accordance with this Act.
19 Where a maker or person represented requires emergency health care, a health-care provider is not required to obtain consent from the delegate or statutory decision-maker if
(a) the medical treatment is necessary to preserve the life or health of the maker or person represented;
(b) the delay involved in obtaining consent from the delegate or statutory decision-maker may pose a significant risk to the maker or person represented; and
(c) there is no information available that makes it clear that the maker or person represented would not want the required treatment.
(a) any person who acts in good faith according to a decision by a delegate or statutory decision-maker or in accordance with an instruction or expression of wishes in a personal directive;
(b) a delegate, statutory decision-maker, nearest relative, health-care provider, person in charge of a home-care services provider or person in charge of a continuing-care home who acted in good faith under subsection 10(2) in requesting an assessment of capacity of a maker or person represented;
(c) a health-care provider for failing to comply with subsection 18(3) if the health-care provider complies with subsection 18(1) and did not know of the existence of the personal directive or its contents; or
(d) a delegate or statutory decision-maker for anything done or omitted to be done in good faith while carrying out authority in accordance with this Act.
21 Nothing in this Act grants greater rights, access to services or privileges to a maker or person represented or delegate or statutory decision-maker acting on behalf of a maker or person represented than would apply to the maker or person represented if the maker or person represented had capacity.
22 (1) This Act applies only to a personal directive made on or after the date this Act comes into force.
(2) Nothing in this Act invalidates an authorization made under the Medical Consent Act before the coming into force of this Act.
23 Nothing in this Act precludes combining a personal directive with an enduring power of attorney made under the Powers of Attorney Act in a single instrument provided that the instrument conforms to the form and execution requirements of this Act.
24 An instrument authorizing a person to make personal-care decisions on behalf of another or setting out instructions, values, beliefs or wishes regarding personal care made outside of the Province has the same effect as a personal directive made under this Act if it was made in the form required
(ii) the jurisdiction where the person who made the instrument was habitually resident at the time the instrument was made.
25 A person who, without the maker's consent, wilfully destroys, conceals, alters or forges a personal directive or a revocation of a personal directive is guilty of an offence.
26 A person who wilfully misrepresents himself or herself in relation to a personal directive or wilfully misrepresents the wishes of the maker of a personal directive is guilty of an offence.
27 Any person who requires another person to make a personal directive as a condition for obtaining any goods or services is guilty of an offence.
28 Any person who coerces or exerts undue influence on another person to make or revoke a personal directive is guilty of an offence.
29 A maker, person represented or any other interested person may apply to the court for any one or more orders referred to in Section 31.
30 (1) Notice of an application under Section 29 must be served on the maker or the person represented and the persons prescribed in the regulations and on any other person the court determines should be served.
(2) The court may, where the court considers it appropriate to do so, with respect to any or all of the persons referred to in subsection (1),
(a) shorten the time for service;
(b) direct the manner of service or approve the manner of service that has been effected; or
(c) dispense with the requirement for service except with respect to the person who is the subject of the application.
(3) Notwithstanding subsection (1), an application may be made ex parte if the court considers it appropriate to do so.
31 (1) The court may, on hearing an application under Section 29, do any one or more of the following:
(a) where a court is satisfied that a writing embodies the intentions of the maker, the court may, notwithstanding that the writing was not executed in compliance with the requirements of this Act, order that the writing is valid and fully effective as a personal directive as if it had been executed in compliance with the requirements of this Act;
(b) make a determination of capacity of the maker or person represented or a delegate or statutory decision-maker after considering a report made under subsection (2)(b);
(c) determine the validity of a personal directive or any part of it;
(d) based on instructions contained in a personal directive or other evidence of the maker's instructions or wishes made while the maker had capacity, vary, confirm or rescind a personal-care decision, in whole or in part, made by a delegate or statutory decision-maker;
(e) determine the authority of a delegate or statutory decision-maker;
(f) provide advice and directions;
(g) stay a decision of a delegate or statutory decision-maker;
(h) substitute another person as delegate;
(i) order that all or part of a personal directive ceases to have effect;
(j) order that costs of the proceeding be paid from the estate of the maker or person represented;
(k) make any other order that the court considers appropriate.
(2) For the purpose of assisting the court in making a decision under subsection (1), the court may
(a) require a delegate or statutory decision-maker to provide to the court a report of personal-care decisions made by the delegate or statutory decision-maker; or
(b) order that a report on the capacity of a maker or person represented or a delegate or statutory decision-maker be prepared.
(3) In making a decision under subsection (1), the court may not add to or alter the intent of an instruction contained in a personal directive unless the court is satisfied that the maker's instruction or wishes changed subsequent to the making of the instruction.
32 (1) The Governor in Council may make regulations
(a) prescribing facilities for the purpose of clause 2(c);
(b) prescribing matters for the purpose of clause 2(l);
(c) respecting the assessment or reassessment of capacity for the purpose of Section 9, subsection 10(3) or 10(4) or Section 11;
(d) prescribing health care for the purpose of Section 16;
(e) prescribing persons to be served for the purpose of subsection 30(1);
(f) defining any word or expression used but not defined in this Act;
(g) redefining any word or expression defined in this Act;
(h) considered necessary or advisable by the Governor in Council to carry out effectively the intent and purpose of this Act.
(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.
33 Section 2 of Chapter 208 of the Revised Statutes, 1989, the Hospitals Act, as amended by Chapter 6 of the Acts of 2000, Chapter 29 of the Acts of 2000 and Chapter 42 of the Acts of 2005, is further amended by
(a) striking out clause (ca) and substituting the following clause:
(b) striking out clause (v) and substituting the following clause:
34 Subsection 52(2A) of Chapter 208, as enacted by Chapter 42 of the Acts of 2005, is amended by
(a) adding "whether the person understands and appreciates" immediately after "consider" in the third line; and
(b) striking out "whether the person understands" in the first line of clause (a).
35 (1) Subsection 54(2) of Chapter 208, as enacted by Chapter 42 of the Acts of 2005, is amended by
(a) adding "or a delegate authorized under the Personal Directives Act" immediately after "Act" in the second line of clause (a);
(b) striking out "or common-law partner, if the spouse or common-law partner is cohabiting with the patient in a conjugal relationship" in the first, second and third lines of clause (c) and substituting "of the patient";
(c) striking out "or a person who stands in loco parentis" in the first and second lines of clause (e); and
(d) striking out clause (f) and substituting the following clauses:
(fa) an adult sibling of the patient;
(fb) a grandparent of the patient;
(a) adding "excepting a spouse," immediately before "has" in the first line; and
(b) adding "or has been granted a court order to shorten or waive the twelve-month period" immediately after "period" in the second line.
36 Section 54A of Chapter 208, as enacted by Chapter 42 of the Acts of 2005, is amended by
(a) striking out clause (a) and "or" immediately after clause (a) and substituting the following clause:
(ii) circumstances exist that would have caused the patient to set out different instructions had the circumstances been known based on what the substitute decision-maker knows of the values and beliefs of the patient and from any other written or oral instructions;
(c) adding immediately after clause (b) the following clause:
(a) adding "or a delegate authorized under the Personal Directives Act" immediately after "Act" in the second line of clause (a);
(b) striking out "or common-law partner, if the spouse of common-law partner is cohabiting with the patient in a conjugal relationship" in the first, second and third lines of clause (c) and substituting "of the patient";
(c) striking out "or a person who stands in loco parentis" in the first and second lines of clause (e); and
(d) striking out clause (f) and substituting the following clauses:
(fa) an adult sibling of the patient;
(fb) a grandparent of the patient;
(a) adding "excepting a spouse," immediately before "has" in the first line; and
(b) adding "or has been granted a court order to shorten or waive the twelve-month period" immediately after "period" in the second line.
38 Section 3 of Chapter 42 of the Acts of 2005, the Involuntary Psychiatric Treatment Act, is amended by
(a) striking out "two years" in the third line of clause (f) and substituting "one year"; and
(b) adding immediately after clause (y) the following clause:
39 (1) Subsection 38(1) of Chapter 42 is amended by
(a) adding "or a delegate authorized under the Personal Directives Act" immediately after "Act" in the second line of clause (a);
(b) striking out "involuntary" in the first line of clause (b);
(c) striking out "or common-law partner, if the spouse or common-law partner is cohabiting with the patient in a conjugal relationship" in the first, second and third lines of clause (c) and substituting "of the patient";
(d) striking out "or a person who stands in loco parentis" in the first and second lines of clause (e); and
(e) striking out clause (f) and substituting the following clauses:
(fa) an adult sibling of the patient;
(fb) a grandparent of the patient;
(a) adding "excepting a spouse," immediately before "has" in the first line; and
(b) adding "or has been granted a court order to shorten or waive the twelve-month period" immediately after "period" in the second line.
40 Chapter 279 of the Revised Statutes, 1989, the Medical Consent Act, is repealed.
41 Chapter 379 of the Revised Statutes, 1989, the Public Trustee Act, is amended by adding immediately after Section 8 the following Section:
(a) a person appointed as guardian; or
(b) an enduring power of attorney or other legal arrangement to manage the estate or financial affairs of the person being placed or to be provided home-care services,
a referral may be made to the Public Trustee stating that the person being placed or to be provided home-care services is not capable of managing the person's financial affairs.
(2) A referral referred to in subsection (1) must be accompanied by the written opinion of a duly qualified medical practitioner or a prescribed health-care professional stating that the person being placed in a continuing-care home or to be provided home-care services is not capable of managing the person's financial affairs.
(3) A referral made pursuant to subsection (1) may be made by the person in charge of a continuing-care home or home-care services provider or by the person making the decision to accept placement in a continuing-care home or regarding provision of home-care services under Section 14 of the Personal Directives Act.
(4) Where a referral has been made pursuant to subsection (1), the Public Trustee has the authority to have access to any relevant information respecting the financial affairs of the person being placed in a continuing-care home or to be provided home-care services and may take any action the Public Trustee considers appropriate to protect the property and financial affairs of the person.
(5) Where the Public Trustee is not able to find a legally appointed guardian of the estate of the person or an attorney appointed under an enduring power of attorney or the Public Trustee is of the opinion that the Public Trustee's continued intervention is appropriate, the Public Trustee may take possession of the property and effects and safely keep, preserve and protect the property and effects of a person placed in a continuing-care home or to be provided home-care services pursuant to Section 14 of the Personal Directives Act and may expend from such property and effects such amount as is necessary to safely keep, preserve and protect the property and affects, and for this purpose has all authority to do so.
(a) the Public Trustee is managing the estate of a patient pursuant to Section 59 of the Hospitals Act and the patient is discharged from the hospital;
(b) the Public Trustee is managing the estate of an adult pursuant to Section 13 of the Adult Protection Act and either the court finds that the person is not a person in need of protection or the order that a person is an adult in need of protection expires, terminates or is rescinded; or
(c) the Public Trustee is managing the estate of a person pursuant to Section 8A,
the Public Trustee's authority to manage the estate continues until
(d) the Public Trustee determines that it is no longer necessary to manage the estate of the person;
(e) the Supreme Court, or a judge thereof, appoints the Public Trustee or another person to be guardian of the estate of the person;
(f) the Public Trustee receives a revocation of the declaration of competency stating that the person is not capable of administering the person's estate issued pursuant to the Hospitals Act;
(g) the Public Trustee receives a written medical opinion signed by a physician stating that the physician has performed an assessment of the person's competency and that the physician is of the opinion that the person is competent to manage the person's estate; or
(h) a court determines that the person is competent to manage the person's estate and finances,
and the Public Trustee shall manage the estate in accordance with this Act.
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