What Is A Personal Directive (Living Will) And Do I Need One?

Have you wondered who will make choices for you in the event of a health emergency that leaves you unable to make choices for yourself? If you become mentally incapacitated, is there someone you trust to make personal and health care decisions for you? Do you have a preference about organ or tissue donation, or strong feelings about whether you receive life-sustaining measures or other types of medical treatments? If you answered “yes” to any of those questions, you need a Personal Directive. Northwest Territories lawyers at Dragon Toner Law Office are of the view that a Personal Directive – also referred to as an Advance Directive, a Living Will, a Power of Attorney for Personal Care, or a Health Care Directive – is a key part of any estate plan. Here is what you need to know about Personal Directives.


Northwest Territories lawyers answer: What is a Personal Directive?

A Personal Directive is a legal document that allows you to arrange in advance how, when, and by whom decisions about your health care and other personal matters will be made if you later lack the capacity to make those decisions. More particularly, in a Personal Directive you can:

  1. Choose one or more people (your “agent” or “agents”) to have authority to make decisions on your behalf with respect to health care, medical treatments, housing and accommodations, and other aspects of your well-being if you become unable to make those decisions yourself; and/or
  2. Provide your instructions and preferences for future care (e.g. giving or refusing consent to certain medical treatments) which you want to be followed if you become incapable; and/or
  3. Express the values, beliefs, and wishes you want to inform health care decisions made on your behalf if there are no explicit instructions relevant to a particular situation.

As can be seen, a Personal Directive is a flexible and powerful legal document. It can be general, simply appointing an agent that you trust to make decisions on your behalf, or specific, containing your itemized instructions and detailed preferences.


What are the requirements to make a valid Personal Directive?

Northwest Territories’ Personal Directives Act, S.N.W.T. 2005, c. 16. addresses matters such as who is eligible to make a Personal Directive, who is qualified to act as an agent, and the necessary requirements to make a valid Personal Directive. To be valid, a Personal Directive must contain the full name of the maker (known as the “director”) and of the agent and both of their signatures, the name and signature of a witness to both signatures, and a declaration that the person designated as agent is aware of and accepts the instructions in the directive and the duties of an agent. There are certain people who cannot act as a witness to the maker's signature – please contact our Yellowknife lawyers for assistance with preparing a valid Personal Directive.


What is capacity, how is incapacity determined, and who decides?

A Personal Directive is valid once signed but does not take effect (i.e., it cannot be used) until a person is determined to have lost mental capacity. Northwest Territories’ Personal Directives Act defines capacity as the ability to understand information that is relevant to the making of a personal decision, and to appreciate the reasonably foreseeable consequences of that personal decision. The determination that a person lacks capacity is made when two professionals, each of whom is either a medical practitioner or a psychologist, jointly or separately assesses the person’s condition and makes a written and dated declaration that he or she lacks capacity. Capacity may be lost due to chronic disease, sudden illness, accident, or health emergency, and may be lost permanently or temporarily (in other words, capacity can be regained).


What else do I need to know about Personal Directives?

Northwest Territories’ estate planning lawyers at Dragon Toner Law Office can explain all of the benefits of having a Personal Directive and answer your estate planning questions. Here are some answers to FAQs about Personal Directives:

  • A Personal Directive can be short-term or it can be for the duration of your life.
  • You can revoke a Personal Directive, in whole or in part, if at that time you understand the nature and effect of the revocation.
  • A Personal Directive cannot give your agent the power to deal with your finances, assets, real estate, or business in the event of incapacitation. The power to deal with financial matters on your behalf is given by a different type of legal document called a Power of Attorney.
  • Having a Personal Directive in place allows your loved ones to avoid time-consuming and costly court applications in the event that you lose capacity.


Get trusted wills and estate planning advice from our Yellowknife lawyers

At Dragon Toner Law Office, we are committed to making the estate planning process as stress-free as possible, so that you will have the comfort of knowing that your intentions have been expressed and that everything is taken care of in the event of incapacity. Our trusted Yellowknife lawyers can help you prepare and execute a Personal Directive to provide instructions to permit a trusted person to act on your behalf in the event that you lose the capacity to make personal and/or medical decisions during your life. If you would like more information about our wills and estate planning services, including the preparation of a Last Will and Testament and a Power of Attorney, please contact us at 867-873-6000 or toll-free at 1-888-558-0668. You may also visit our offices at 5016-50th Avenue, Yellowknife, Northwest Territories. Personal Directives can bring peace of mind – get started by contacting us today.