Although some Nova Scotians currently make use of 'advance care directives' or 'living wills' in an effort to appoint another person to make decisions on their behalf, give advance instructions or express their wishes on future personal care decisions, presently in Nova Scotia there is no specific legislation governing such documents. This is unfortunate, given that such documents allow individuals, while they are able, to express their personal autonomy in decisions that will affect them in the event of their incapacity.

Currently, the Powers of Attorney Act authorizes a person by execution of a Power of Attorney to authorize another person (the attorney) to manage their estate (property). A Power of Attorney is referred to as an enduring Power of Attorney if it contains a provision expressly stating that it may be exercised during the legal incapacity of the donor. However, the Powers of Attorney Act does not specifically provide for Powers of Attorney for personal care.

The only type of advance health care directive currently available in Nova Scotia is found in the Medical Consent Act. This legislation allows for a person to pre-authorize another person to give consent or direction respecting medical treatment in the event the person becomes incapable of giving consent. However, it does not provide for personal care decisions, other than medical ones, and does not provide for a person to give instructions and express their wishes about personal care decisions, including medical care.

Thus, other than medical care, there is no specific legislative authority to allow a person to appoint another person to make decisions on matters of personal care, for example, with respect to residence, care and services, and matters of comfort. Nor is there any specific legislative authority to allow a person to give advance instructions or express their wishes on future personal care decisions.

And for those who have not made an authorization pursuant to the Medical Consent Act, there is no provision in law that allows for a substitute decision maker for medical decisions for incapable persons outside of a hospital unless there is a court appointed guardian for medical care outside of a hospital.

Many stronlgy believe that other forms of advance health care directives should also be legal in Nova Scotia to better meet the needs of some people and point to the fact that advance health care directives in a variety of forms are available under laws in other provinces.

 In 1994 and again in 1995, the Law Reform Commission of Nova Scotia recommended that both a proxy and the "living will" model be allowed be allowed in the Province. In addition, the Commission recommended that there be a list of people set out in the legislation to make decisions for a person who had not taken advantage of these options when they were capable of doing so. The law have few formalities to make advance directives a practical and accessible option that fulfils the principles of autonomy and self-determination.

You will no doubt be pleased to know that it appears that finally, perhaps the government has taken those recommendations to heart.

Say 'hello' to the draft "Personal Directives Act". And please accept my apologies for the delay in passing along the following correspondence:

Dear Stakeholder:

We are writing to seek your input on a joint proposal of the Nova Scotia Departments of Justice and Health regarding the making of personal care decisions.

The proposal calls for the introduction of legislation that would authorize the making of personal directives for personal care decisions. Personal care decisions include matters such as health care, medical care and treatment, nutrition, shelter, residence, clothing, comforts, social activities and support services.

The legislation would replace the Medical Consent Act. Essentially, the legislation would provide for three things. First, by way of a personal directive written in advance, the legislation would allow individuals to appoint substitute decision makers (called "delegates") to make personal care decisions for them should they become incapable of making such decisions. Second, the legislation would allow individuals to set out instructions or general principles about what or ow personal care decisions should be made in the event that they become incapable of making such decisions. Third, where no personal directive has been made, the legislation provides a hierarchy of substitute decision makers to make decisions regarding medical care and placement in a continuing care home.

This legislation would provide Nova Scotians the opportunity to make certain medical and other decisions for themselves in advance, thereby creating some degree of comfort and allowing them some measure of control at times in their lives when they are otherwise extremely vulnerable. It would also provide families and medical and health care professionals with guidance on how to proceed in the face of very personal and challenging decisions. Most other Canadian jurisdictions have similar legislation in place.

The Departments of Justice and Health have prepared a discussion document for your consideration. The paper outlines the purpose of the legislation and how it would operate. A questionnaire is also included at the back of the discussion document with feedback requested by April14, 2008. In addition, the draft legislation (with commentary) is located on the Department of Justice website. The draft legislation was prepared by the Departments of Justice and Health. The departments will use the feedback received to further assess the proposal, to further improve or refine the draft legislation, and to prepare for the drafting of regulations. The draft legislation, discussion document and questionnaire are available online at www.gov.ns.ca/just/pc

If you have questions about the proposed legislation, please contact Allyson O'Shea at the Department of Justice at 424-6094 or by e-mail at PersonalDirectiveAct@gov.ns.ca

In closing, we sincerely thank you for your anticipated review of the paper and draft legislation and we hope you will take the time to share your thoughts with us.

Yours very truly,

Cecil P. Clarke

Attorney General Minister of Justice

Chris d'Entremont

 Minister of Health

As you will see from the attached links, the proposed Act will allow a "capable individual" to make a personal directive "setting out instructions, general principles or an expression of the maker’s wishes about future personal care decisions to be made on his or her behalf and authorizing one or more persons of the age of majority to act as delegate to make, on the maker’s behalf, decisions concerning the maker’s "personal care".

"Personal care” decisions are defined as including "health care, medical care and treatment, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services, and other personal matters" that could be included in the regulations made under the Act.

It is interesting to note that a "capable person" is defined to include both individuals who have reached the age of majority (19 years old) and those who have not. The theory being that individuals who are under the age of majority may, in some cases, be mature enough to make decisions about their medical care treatment, if they are able to understand the nature and consequences of the decision. Referred to in the law as “mature minors”, the proposed Act would allow such individuals to make a personal directive about that personal care decision.

 **A better explanation of the state of the current law concerning the effects of appointing a substitute decision maker under the Medical Consent Act is set out in this brochure , authored by the Health Law Instiute, entitled "Withholding and Withdrawing of Potentially Life-sustaining Treatment".