Is there a difference between a living will and a last will and testament? What makes a living will valid? We’ll answer these questions and more in this article
This article serves as a basic primer on what are living wills in Canada, which can be used by lawyers to prepare clients for their estate planning.
While most of us dread the thought of dying, what could be worse is not having our wishes followed if we are incapacitated. A living will is a way to express these wishes. It outlines the kind of medical care we want if we're too sick to make decisions for ourselves.
In this client education piece, we’ll discuss what living wills are and what to keep in mind when drafting them.
Living wills are legally binding documents that indicate the future personal wishes of a person if they become incapacitated.
It outlines a person’s preferences regarding their medical treatment and personal care when they cannot expressly state these preferences.
It takes effect when a person becomes incapacitated or unconscious due to a permanent injury resulting in comatose; illness or disease; or of old age.
For example, living wills may indicate:
- the type of treatment that the maker is still willing to undergo;
- how life support should be administered; or
- preferences on the use of other medical devices.
If a person does not have a living will, decisions regarding a person’s medical care shall be passed to their spouse or relatives.
Living wills are important. A person’s personal preferences may not be known to their family members or may not be in line with their family members’ decisions.
Laws on living wills in Canada
There are provincial or territorial laws in Canada that define what living wills are, what their scope is, and what makes living wills valid.
Given these different laws, it’s important to consult with an estate lawyer when making a living will in Canada. In addition, the legal requirements of livings wills, powers of attorney, directives, and agreements may also vary in every province or territory.
Under these provincial or territorial laws, living wills in Canada go by different names:
- Advance Directive: British Columbia, Yukon
- Personal Directive: Alberta, Northwest Territories, Nova Scotia
- Advance Health Care Directive: Newfoundland and Labrador
- Health Care Directive: Manitoba, Prince Edward Island, Saskatchewan
- Representation Agreement: British Columbia
In Québec, living wills – which are called Mandates – are covered by the Québec Civil Code. In addition, a power of attorney may also include provisions on personal and healthcare decisions, such as in Ontario.
Watch this video to know more about Mandates in Québec:
Find out more about living wills in Canada and other related topics on estate planning on our Trusts and Estates page.
Requisites of living wills in Canada
After addressing what are living wills, persons who intend to write one must know its requirements under their provincial or territorial laws. This is important so that their living will is valid and legal under these laws.
As to form
To be valid, living wills in Canada must be:
- written and dated by the maker of the living will
- signed by the maker, in the presence of at least two or more witnesses
- signed by the witnesses, also in the presence of the maker
- the witnesses must be of legal age and are allowed by law to become witnesses
From these requisites, it can be said that “oral” living wills are invalid. Although preferences and wishes on healthcare can be orally expressed, a living will makes a difference because of its legal and binding effect.
As to the person making the living will
The provincial or territorial laws also require that the person making the living will must have the legal capacity to make one.
In addition, the person writing the living will must be of legal age, or the age required by provincial or territorial law.
For example, under Alberta’s Personal Directives Act, the maker of a living will (legally called personal directive) must:
- be 18 years old and above
- understand the nature and effects of a personal directive
As to the witnesses
Some persons are not allowed to be witnesses to a living will in Canada.
Under Manitoba’s The Health Care Directives Act, a witness must not be the proxy or married to/in a common-law relationship with the proxy. A proxy is the one who makes the decisions for the maker of the living will.
Here are some points to include when writing a living will:
- Designation: naming the agent, proxy, representative, or “attorney” to act on behalf of the living will’s maker.
- Powers: describing in detail the powers of such agent, etc., as to the maker’s medical treatment, which may include the care and education of the maker’s minor children.
- Prohibitions: such as naming persons who cannot be notified of the living will’s existence; restrictions on the powers of the agent, etc.; or persons who cannot be the agent, etc., among others.
Because the term “living will” is not used under Canadian law, powers of attorney are sometimes used to also refer to living wills. In some provinces, powers of attorney may also include provisions of living wills.
For example, under Ontario’s Substitute Decisions Act, a person can issue a Power of Attorney for Personal Care, which empowers another to make personal care and health care decisions for another. This means that in Ontario, a power of attorney can include provisions on financial and healthcare decisions.
One of the differences between a living will and a will is when it takes effect.
A living will, as the name suggests, takes effect when a person who wrote the will is still alive. Living wills cease to take effect when the person has already died.
A last will and testament, on the other hand, takes effect when the person who wrote the will (the testator) dies.
Another difference is that these two types of “wills” serve distinct purposes. Living wills are about a person’s wishes regarding medical and healthcare treatment. Wills are about a person’s wishes as to the disposition of their properties or estate. To know more on wills, read our article on estate laws in Canada.