When to Update Your Estate Planning Documents
Depending on your jurisdiction, some provinces and territories in Canada refer to a Personal Directive as:
A Living Will;
A Representation Agreement;
A Power of Attorney for Personal Care;
An Enduring Power of Attorney for Personal Care;
An Advanced Health Care Directive;
An Advance Directive;
A Health Care Directive; or
An Enduring Power of Attorney Appointing a Personal Attorney.
For the purposes of this site, we will refer to all of the above as a "Personal Directive"
Personal Directive FAQ
What is a Personal Directive?
A Personal Directive is a legal document that allows you to name a person (an “Agent”, “Proxy”, “Attorney for Personal Care”, “Health Care Proxy”, “Substitute Decision Maker”, “Representative” or a “Delegate”) to make personal decisions on your behalf when you no longer have the required mental capacity to do so. For the purposes of this site, we will refer to the person appointed as the "Agent".
Terminology for each Canadian Jurisdiction:
Representation Agreement - British Columbia, person appointed is called a "Representative"
Personal Directive - Alberta & Northwest Territories, person appointed is called an "Agent"
Personal Directive - Nova Scotia, person appointed is called a "Delegate"
Enduring Power of Attorney Appointing a Personal Attorney - Saskatchewan, person appointed is called an "Attorney"
Health Care Directive - Manitoba, person appointed is called a "Health Care Proxy"
Power of Attorney for Personal Care - Ontario, person appointed is called an "Attorney"
Enduring Power of Attorney for Personal Care - New Brunswick, person appointed is called an "Attorney"
Health Care Directive - Prince Edward Island, person appointed is called a "Proxy"
Advance Health Care Directive - Newfoundland & Labrador, person appointed is called a "Substitute Decision Maker"
Advance Directive - Yukon Territory, person appointed is called a "Proxy"
Note that Nunavut Territory is excluded because it does not have legislation that permit any sort of directive as a legally enforceable estate planning document.
In the absence of a Personal Directive and in the case of your inability to make personal decisions for yourself, the only other way that a loved one or friend can obtain the legal authority to make personal decisions for you is to apply to become your legally appointed Guardian through the court process. This can be a lengthy, time consuming and expensive process.
A Personal Directive does NOT give your Agent the authority to make decisions regarding your property and financial matters for you. For that you need a separate document called a Enduring Power of Attorney.
What age do I have to be to make a Personal Directive?
You must be of legal age in your province or territory to make a Personal Directive. EXCEPT in Manitoba, Ontario, Prince Edward Island and the Yukon Territory you can make a Personal Directive at the age of 16 years.
What makes a Personal Directive valid?
To be valid, the Maker MUST have the required mental capacity to give instructions for the creation of their Personal Directive and also at the time of signing their Personal Directive documentation. The Personal Directive must also be signed in accordance with the requirements set out in law (dated, signed and properly witnessed).
Should you have any questions/concerns about mental capacity, please seek the assistance of qualified legal and medical practitioners.
What are the rules governing the Agent in a Personal Directive?
Caselaw and legislation impose a number of rules and duties on your Agent. Among them, most notably:
Your Agent has the right to consent or refuse to consent to health care services.
Your Agent has the right to access personal information that is relevant and necessary to make decisions for you.
Your Agent must keep a record of all decisions made on your behalf.
Your Agent MUST follow the guidelines/instructions you specified in your Personal Directive. If unclear, your Agent MUST make decisions based on their knowledge of your wishes and beliefs.
Who can I appoint as my Agent?
Your Agent must be of legal age in your province/territory and must be mentally capable. Except, in Ontario, your Agent must be at least 16 years of age.
In some jurisdictions (British Columbia, Nova Scotia, New Brunswick and Ontario), your Agent cannot be someone who you pay to provide health care or personal services to you unless they are your spouse or are related to you.
Further, New Brunswick prohibits the appointment of a person who is convicted of an offence involving dishonesty, as your Agent.
How much does a Personal Directive cost from a law firm? and how much does it cost to have one created on makeyourownwills.com?
You can expect a law firm to charge you $200 (CAD) and up for a Personal Directive. You will also be required to attend that law firm's office on two occasions: the first is when giving instructions and the second a week or more later is to sign your Personal Directive.
A Personal Directive made using Make Your Own Wills is costs only $49 (CAD), is ready for signing within 2- 3 business days and is signed by you and your witness in the comfort of your own home.
What about witnesses?
Not just anyone can sign as witness to your Personal Directive. Your witness MUST NOT be:
An Agent named in your Personal Directive;
A spouse or partner of an Agent named in your Personal Directive;
Your spouse or partner; or
a minor (below the age of majority).
In some other jurisdictions:
your child(ren) are not permitted to sign as witness (Ontario);
an employee or agent of an Agent named in your Personal Directive are not permitted to sign as witness (British Columbia).