If you want your wishes concerning medical treatment observed, even if you cannot communicate them at the time, you can make a health care directive. Sometimes people refer to a health care directive as a living will but in Saskatchewan the legal term is health care directive.
A health care directive is prepared in advance, looking ahead to a time when you may no longer be able to make or communicate health care decisions for yourself. It can be a useful tool to help you plan for the future and will take effect if you cannot consent to or refuse treatment directly. A health care directive can be made in any circumstances, not just in the event of a terminal illness.
A directive gives your doctor or other health care provider directions about what kind of measures are acceptable to you when you can no longer communicate what you want. When your doctor or other health care provider follows your directive, they have protection from legal action.
A directive cannot permit active euthanasia or assisted suicide.
Our laws regarding health care directives apply only in Saskatchewan. If you live in another province, check the applicable laws in that province.
A directive made in another place will be effective in Saskatchewan if it is made in an acceptable form and meets all the requirements set out in our legislation.
Who Can Make a Directive
To make a directive you must be at least 16 years of age and capable of making health care decisions.
A person is capable of making health care decisions when they are able to understand information about potential treatments and the consequences of making or not making a decision, and are able to communicate the decision.
When to Make a Directive
You may want to make a directive in a situation where you know you are ill. For example, if you are facing a terminal illness, or if you have an illness where you may have periods when you are incapable of making or communicating health care decisions.
You may want to make a directive when you are in good health, planning ahead to a time when you may no longer be able to make decisions for yourself.
In any event, a directive must be made when you are capable of making a health care decision - it is too late once you become incapable.
Appointing someone under a power of attorney to deal with your personal affairs will not cover health care decisions. To deal with these decisions a health care directive is needed.
The law requires that a directive be in writing - either handwritten or typed - and include your signature and the date. If you sign the directive yourself, it does not need to be witnessed. If you are unable to sign the directive yourself, someone else, other than your proxy or your proxy's spouse, may sign for you at your direction and in your presence. This signature must be witnessed by another person.
A directive will take effect when you become incapable of making or communicating your health care decisions.
A living will or directive will be effective if it was made in a form acceptable under Saskatchewan law, even if it was made before the law was passed. However, it must meet the requirements set out in the Act.
A lawyer can prepare a health care directive for you for a fee. However, you can make a health care directive without the assistance of a lawyer. There is no form that must be used for a directive but some agencies such as those listed under the For More Information section offer samples you can use as a guide.
What to Include in a Directive
Your directive can give specific directions regarding certain treatments and situations.
You should be as clear and specific as possible. Health care providers do not have to follow directions that are not clear.
In your health care directive you can also name another person as your proxy. You can have your proxy make all or some health care decisions for you. Your proxy will make decisions for you when you are not able to make or communicate those decisions yourself and your directive does not address the situation.
Your proxy does not need to be a family member. You can choose any person who is at least 18 years old and has the capacity to make health care decisions.
A married person who is not yet 18 may be a proxy for their spouse. You may name two or more proxies if you wish. They may be named as alternate or joint proxies.
If you name your spouse as proxy and later divorce, the appointment will be revoked unless you state in your directive that the appointment will continue if you divorce.
You should choose someone you trust as your proxy. Treatment wishes should be discussed clearly and completely with your proxy. If your proxy knows your wishes, they must act according to your wishes. If your proxy does not know your wishes, your proxy must act according to what they believe is in your best interests.
A proxy is responsible for making health care decisions for you. Your proxy cannot pass this responsibility on to another person.
If you have made a directive and the court later appoints a personal guardian, your directive will be followed to determine health care issues. If your directive does not give instructions for a particular situation, and a proxy was named in your directive, your proxy's decision will be preferred. If there is a disagreement, either the proxy or the personal guardian may apply to the Court of Queen's Bench for direction.
Where to Keep a Directive
It is important to keep your directive in a place where it can easily be found when you need health care. You may want to have a copy in your wallet and give copies to your proxy, your doctor and family members.
Ending a Directive
You can cancel a health care directive either orally or in writing. You may also destroy it, or make a new directive, which will cancel your old directive.
A directive will not be in effect while you are capable of making and communicating health care decisions.
Your directive gives instructions to your doctor and other health care providers. If your medical condition involves a situation you have foreseen and dealt with in your directive, your doctor or other health care provider must follow your directions. If your medical condition involves a situation you have not foreseen, and no proxy was named, your directive will be used as a guide.
Before making a directive, you may want to discuss treatment options and other issues with your doctor or other health care providers. You will also want to have discussions with family members and your proxy, if you name one.
If a dispute arises, an interested person may apply to the Court of Queen's Bench to challenge the appointment of a proxy or a decision made by a proxy or nearest relative.
If You Do Not Have a Directive
The decision whether or not to make a directive is up to you. The law clearly recognizes your right to direct the types of treatment acceptable to you, but you can simply choose not to prepare a directive.
If you become ill and incapable of making health care decisions, and have not prepared a directive, another person may still make decisions for you. That person will be your nearest family member. Your nearest relative is determined in the following order...
- your spouse or person you live with as a spouse
- your adult son or daughter
- your parent or legal custodian
- your adult brother or sister
- your grandparent
- your adult grandchild
- your adult uncle or aunt
- your adult nephew or niece
These include relatives by adoption. Except in cases of adoption, the decision of a relative of whole blood is preferred over the decision of a relative of half-blood. If there is more than one person in the same category, for example a number of brothers or sisters, the decision of the eldest will be preferred. The decision of a custodial parent will be preferred over the decision of a non-custodial parent.
If there are no family members, or the family members cannot be found, then your doctor or other health care provider will make decisions for you by consulting another doctor or health care provider. The second doctor must agree in writing that the proposed treatment is needed.
Other PLEA Publications
Funeral Advisory and Memorial Society of Saskatchewan
Public Guardian and Trustee
Regina Qu'Appelle Health Region
Saskatchewan Hospice Palliative Care Association
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Regina SK S4S 7K3
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Operated by Pro Bono Law Saskatchewan for persons over 65 who are receiving the Federal Guaranteed Income Supplement. However, not every eligible senior is guaranteed service.
Pro Bono Law Saskatchewan
1650-2002 Victoria Ave
Regina SK S4P 0R7