Ontario

Relevant Document: Power of Attorney for Personal Care
Minimum Required Age to Avail Document: 16

Legislation

Health Care Consent Act, 1996,SO 1996, c 2, Sched A

s.1The purposes of this Act are,

[…]

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,

[…]

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to

Substitute Decisions Act, 1992, SO 1992, c 30

Part II — The Person (ss. 43-68)

s.44 To exercise a power of decision under this Part on behalf of another person, a person must be at least sixteen years old

Explanation

Power of Attorney for Personal Care

What Is It?

A Power of Attorney for Personal Care (as opposed to a Power of Attorney for Property) is “a legal document that gives someone the power to make decisions about [their] personal care, including [their] health care .”¹

Who Can Appoint a POA for Personal Care?

A child in Ontario “can only appoint someone under a POA [to make health care decisions for them] if they are 16 or older and have capacity to understand the POA”²

British Columbia

Relevant Document: Representation Agreement
Minimum Required Age to Avail Document: 19

Legislation

Representation Agreement Act ,RSBC 1996 (Supp), c 405

s.1 “adult”means anyone who has reached 19 years of age

s.4 An adult may make a representation agreement unless the adult is incapable of doing so.

Explanation

Power of Attorney vs. Representation Agreement

In British Columbia, “a power of attorney allows an individual to handle financial or legal affairs on your behalf while a representation agreement allows an individual to handle personal or health-related decisions on [an individual’s] behalf.”³

Representation Agreement

What Is It?

A Representation Agreement is “an essential legal planning document for health care matters. It is the only way in BC to choose and authorize your decision maker for health care”⁴

Who Can Make a Representation Agreement?

In order to make a Representation Agreement in BC, you must be at least 19 years old and be considered mentally capable, as defined under BC law.⁵

Alberta

Relevant Document: Personal Directive
Minimum Required Age to Avail Document: 18

Legislation

Personal Directives Act, RSA 2000, c P-6

s.3(1) Any person who is at least 18 years of age and understands the nature and effect of a personal directive may make a personal directive.

s.3(2) A person who is at least 18 years of age is presumed to understand the nature and effect of a personal directive.

Explanation

Enduring Power of Attorney vs. Personal Directive

An Enduring Power of Attorney is “strictly for financial matters and a Personal Directive covers all non-financial matters, such as health care, medical needs, living arrangements, and dependents.”⁶

Personal Directive

What Is It?

A Personal Directive “… sets out instructions for someone else (one or more trustworthy loved ones you appoint) to manage your personal, non-financial decisions, such as health care, medical procedures …”⁷

Saskatchewan

Relevant Document: Health Care Directive
Minimum Required Age to Avail Document: 16

Legislation

Health Care Directives and Substitute Health Care Decision Makers Act, 2015 , SS 2015, c H-0.002

s.1[…] "directive" means instructions given by a person pursuant to this Act that deal with the person's health care decisions , with the appointment of a proxy or with both; ("directive")

s.3 Any person 16 years of age or more who has the capacity to make a health care decision may make a directive.

Explanation

Enduring Power of Attorney vs. Health Care Directive

In Saskatchewan, “an enduring POA is a document that gives someone the power to make decisions related to your financial affairs and property, if you become mentally incapable … [A] health care directive is a document that appoints someone to make decisions related to your personal careand outlines your wishes for personal healthcare decisions ”⁸

Health Care Directive

Who Can Make a Health Care Directive?

You can make a health care directive if you are:

1.  at least 16 years of age,
2.  able to understand information about potential treatments and their consequences, and
3.  able to communicate your decisions⁹

Manitoba

Relevant Document: Health Care Directive
Minimum Required Age to Avail Document: 16

Legislation

The Health Care Directives Act, SM 1992, c 33

s.4(1)  Every person who has the capacity to make health care decisions may make a health care directive.

s.4(2) In the absence of evidence to the contrary, it shall be presumed for the purpose of this Act

1.  that a person who is 16 years of age or more has the capacity to make health care decisions; and
2.  that a person who is under 16 years of age does not have the capacity to make health care decisions .

Explanation

Enduring Power of Attorney vs. Health Care Directive

“An enduring power of attorney in Manitoba is a document that you create to give someone the authority to make decisions related to your financial affairs and property if you lose mental capacity … [A] health care directive is a document that appoints someone to make decisions about your personal care and outlines your personal healthcare preferences.”¹⁰

Health Care Directive

The Health Care Directives Act “allows you to … give another person the power to make medical decisions for you should you ever be unable to make them yourself.”¹¹

Who Can Make a Health Directive?

“In Manitoba, anyone over the age of 16 can write a Health Care Directive.”¹²

Québec

Relevant Document: Protection Mandate
Minimum Required Age to Avail Document: 18

Legislation

Civil Code of Québec, SQ 1991, c 64

s.15 Where it is ascertained that a person of full age is incapable of giving consent to care required by his state of health and in the absence of advance medical directives, consent is given by his mandatary , tutor or curator.

s.2130 Mandate is a contract by which a person, the mandator, confers upon another person, the mandatary, the power to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power.

s.2131 The object of the mandate may also be the performance of acts intended to ensure the personal protection of the mandator, the administration, in whole or in part, of his patrimony and, generally, his moral and material well-being , should he become incapable of taking care of himself or administering his property.

s.2166 A protection mandate is a mandate given by a person of full age in anticipation of his incapacity to take care of himself or to administer his property

Explanation

Power of Attorney vs. Protection Mandate

In Quebec, “powers of attorney may only be used for the management of property and affairs. A power of attorney cannot be given for medical and personal care decisions … Wishes regarding consent to medical and end-of-life care may be included in a protective mandate and/or advance medical directives.”¹³

*A medical directive is “a document in which a person of full age who is capable of giving consent to care specifies in advance the medical care that they will agree or refuse to receive in the event that they become incapable of giving consent to care in specific clinical situations .*

Protection Mandate

What Is It?

A protection mandate is “a document in which a person expresses their wishes and names one or more trusted people to look after their person and their property in case of incapacity.”¹⁴ “The person who draws up the document is the mandator and the people named in the document are the mandataries .”¹⁵ In other words, “the person who confers the power on another individual to perform acts in his or her name is called the ‘mandator.’ The person who receives this power is called the ‘mandatary.’”¹⁶ The mandatary is said to have “been given a ‘mandate’”¹⁷ and is “obligated to execute the power of attorney with due diligence.”¹⁸

A “mandatary to the person” is responsible for ensuring the well-being of the mandatary.¹⁹ This includes “decisions concerning their health care.”²⁰ For example, a mandatory must consent to health care on behalf the mandatary.²¹

Who Can Draft a Protection Mandate (i.e., Who Can be a Mandator) ?

In Québec, “you must be of full age [(i.e., at least 18 years old)] and have full capacity when you draft the mandate.”

Newfoundland and Labrador

Relevant Document: Advance Health Care Directive
Minimum Required Age to Avail Document: 16

Legislation

Advance Health Care Directives Act, SN 1995, c A-4.1

s.7 For the purpose of this section, there shall, in the absence of evidence to the contrary, be a presumption

1.  that an advance health care directive was made immediately prior to the maker losing the competency to make health care decisions;
2.  that a person who is 16 years  of age or older is competent to make health care decisions; and
3.  that a person who is younger than  16 yearsof age is not competent to make health care decisions.

s.3(1) A person who is competent [i.e., 16 or older] may make an advance health care directive setting out the person's instructions regarding his or her health care treatment or setting out general principles regarding the type of health care the person wants.

s.3(2) A person who is competent to make a health care decision may appoint a substitute decision maker, who shall be at least 19 years of age, to decide on the appropriate health care for that person.

Explanation

Power of Attorney vs. Advance Health Care Directive

In Newfoundland and Labrador, “Powers of Attorney are limited to financial matters.” As a result, “Powers of Attorney for Personal Care” are not legally recognized in Newfoundland and Labrador – only Advance Health Care Directives are.²²

Advance Health Care Directive

What Is It?

“An Advance Health Care Directive is a document that allows you to give instructions about your future medical care and/or designate an individual or individuals to make health care decisions for you if you are no longer able.”²³

Who Can Make an Advance Health Care Directive?

To make an Advance Health Care  Directive, you must be at least 16 years old and you must be competent to make a health care decision.²⁴

New Brunswick

Relevant Document: Power of Attorney for Personal Care
Minimum Required Age to Avail Document: N/A

Legislation

Enduring Powers of Attorney Act, SNB 2019, c 30

The legislation does not set out a minimum age required to appoint a POA for personal care. Rather, the only requirement for a valid POA for personal care is that the grantor has the capacity to make it:

s.4(1) An enduring power of attorney is valid if

(a) the grantor had the capacity to make it

[…]

Since the only requirement for appointing a POA for personal care is having capacity,²⁵ and since there is no age threshold at which capacity is presumed in New Brunswick, then any individual of any age in New Brunswick may appoint a POA, unless there is evidence rebutting the presumption of capacity :

s.2(1) A person has capacity with respect to a matter or an act if the person is able to

1.  understand the information that is relevant to decisions with respect to the matter or act, and
2.  appreciate the reasonably foreseeable consequences of decisions with respect to the matter or act.

s.2(2) A person is presumed to have capacity unless it is determined otherwise.

Explanation

Power of Attorney for Personal Care vs. Advance Health Care Directive

“Prior to July 2020, a power of attorney for personal care in New Brunswick was called an Advance Health Care Directive. After July 2020 and the Enduring Powers of Attorney Act , this document is now referred to as a Power of Attorney for Personal Care. One important distinction about this change in legislation is that you are now no longer able to use a healthcare directive to appoint someone to make healthcare decisions on your behalf . That can only be done through the appointment of an attorney through an [Enduring Power of Attorney] for personal care .”

Power of Attorney for Personal Care

What Is It?

An attorney for person care is “someone who acts on your behalf when it comes to your health care and other personal care.”²⁶

Who Can Appoint a POA for Personal Care?

Anyone with capacity – more specifically, anyone without any evidence that rebuts their presumption of capacity.

Nova Scotia

Relevant Document: Personal Directive
Minimum Required Age to Avail Document: N/A

Legislation

Personal Directives Act, SNS 2008, c 8

The legislation does not set out a minimum age required to make a personal directive. Rather, the only requirement is that the individual making the director has the capacity to do so:

s.3(1) A person with capacity may make a personal directive

1.  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
2.  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.

Since the only requirement for making a personal directive is having capacity²⁷ and since there is no age threshold at which capacity is presumed in Nova Scotia, any individual of any age in Nova Scotia may make a personal directive, unless there is evidence rebutting the presumption of capacity :

s.2In this Act,

1.   "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;
2.   understand the information that is relevant to decisions with respect to the matter or act, and
3.   appreciate the reasonably foreseeable consequences of decisions with respect to the matter or act.

s.2(2) A person is presumed to have capacity unless it is determined otherwise.

Explanation

Personal Directive vs. Power of Attorney (for Personal Care)

“Power of attorney” is defined in s.1 of the Powers of Attorney Act as “legal document by which a donor gives authority to an attorney to act on the donor's behalf in relation to matters of property and finances and includes an enduring power of attorney.” Therefore, a POA for personal care is not legally recognized in Nova Scotia. To appoint someone to make personal, including medical, decisions on your behalf in Nova Scotia, you need to make a personal directive.

Personal Directive

What Is It?

Amongst other things, a Personal Directive, pursuant to the Personal Directives Act, “allows individuals to appoint a substitute decision maker to make a personal care decision on their behalf should they become incapable of making the decision.”²⁸

Who Can Appoint a POA for Personal Care?

Anyone with capacity – more specifically, anyone without any evidence that rebuts their presumption of capacity.

Prince Edward Island

Relevant Document: Health Care Directive
Minimum Required Age to Avail Document: 16

Legislation

Consent to Treatment and Health Care Directives Act , SPEI 1996, c 10

s.1In this Act

[…]

(e) "directive" means a document made in accordance with this Act before or after the coming into force of this Act, in which the maker sets out decisions or wishes or instructions respecting treatment, or appoints a proxy, or both;

s.3(1) Every person is presumed to be capable of

1.   giving or refusing consent to treatment; and
2.   making a health care directive,

until the contrary is demonstrated.

s.20(1) Every person over the age of sixteen years who is capable may execute a directive.

s.20(2) A directive may

1.   stipulate treatment, procedures, or medication that the maker authorizes or refuses to consent to, or directs to be discontinued, in the circumstances set out in the directive;
2.   stipulate circumstances in which the maker shall be permitted to die a natural death, receiving only palliative care intended to reduce pain and suffering;
3.   appoint a proxy;
4.   specify an event or condition upon which the directive becomes effective;
5.   make any other direction concerning the health care or treatment of the maker.

Explanation

Northwest Territories

Relevant Document: Personal Directive

Legislation

Personal Directives Act, SNWT 2005, c 16

s.1In this Act,

"adult" means a person who is 19 years of age or older

[…]

"personal directive" means a written document in which the director provides for his or her health care or other personal matters;

[…]

s.2The purpose of this Act is to allow adults to arrange in advance how, when and by whom decisions about their health careand other personal matters will be made if they later lack the capacity to make those decisions themselves.

s.4(1) An adult may make a personal directive.

s.4(2)Aperson who does not understand the nature and effect of a personal directive may not make that directive.

s.4(3) An adult is presumed to understand the nature and effect of a personal directive.

Explanation

Power of Attorney vs. Personal Directive

In the Northwest Territories, “a power of attorneyis a legal planning document that enables another person to manage your finances for you.”²⁹ A POA in Northwest Territories, therefore, does not cover health-care/medical decisions. A Personal Directive, on the other hand, does:

A Personal Directive is “a legal document that lets you give advance written instructions to health care and other service providers in case you cannot make your own personal decisions [and] lets you choose another person, an agent, to act on your behalf and make decisions for you when you cannot make them yourself.”³⁰

Who Can Make a Personal Directive?

Anyone who is at least 19 years old.³¹

Yukon

Relevant Document: Advance Directive
Minimum Required Age to Avail Document: 16

Legislation

Care Consent Act, SY 2003, c 21, Sched B

s.1In this Act

[…]

"directive" means a document that

(a) names or appoints a person to give or refuse consent to care for the maker …

[…]

s.27(1) A person is capable of making, changing, or revoking a directive if they are

1.   16 years of age or older; and
2.   able to understand the nature and effect of the directive.

Explanation

Advance Directive

What Is It?

“In the Yukon, you can appoint someone you trust to make health care and personal care decisions for you through an Advance Directive … The person you appoint to make decisions for you when you become incapable of making your own decisions is called a proxy …”³²

Who Can Make an Advance Directive?

To make an advance directive in the Yukon, you must be:

1.  mentally capable; and
2.  at least 16 years old³³

Nunavut

Relevant Document: Court-Appointed Guardianship Order
Minimum Required Age to Avail Document: 18

Legislation

Guardianship and Trusteeship Act, SNWT 1994, c 29

s.1 In this Act,

"adult"means a person who has attained the age of 18 years

[…]

s.10(1)  Where no guardianship order is in force under this Act in respect of an adult , the Court may make an order to appoint a temporary guardian if the Court considers the adult to be in need of a guardian and to be at risk of

1.   physical or mental abuse;
2.   neglect; or
3.   the deprivation of liberty or personal security.

s.10(1.1) When determining whether an adult is in need of a guardian under subsection (1), a court shall only consider whether the adult is, by himself or herself, able to understand the information and to appreciate the matters referred to in subparagraph 7(1)(b)(ii), and whether the adult will substantially benefit from the guardianship order.

Explanation

No Legislation Exists to Recognize a Personal Directive

Nunavut is the only Canadian jurisdiction that has not yet “passed legislation recognizing and regulating personal directives.”³⁴ As a result, Nunavut does not have any legislation recognizing agent designations (i.e., an agent designation in a personal directive would be unenforceable). The only alternative for those seeking out designation of an agent who can make decisions on their behalf is a guardianship order³⁵ :

Guardianship Order

Currently, in Nunavut, “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.”³⁶

Under the Guardianship and Trusteeship Act, the court can appoint a guardian where an adult is found incapable of making decisions for their personal or health care matters .³⁷ The appointed guardian “only has the powers given to them by the court”³⁸ which can include the power to make decisions about, amongst other things, an individual’s health care and personal care.³⁹

End Notes