Substitute Decision-Maker Appointments: Toward Uniform Recognition

October 2, 2018 | Emily Smyth

When making plans for the future, many individuals create documents appointing substitute decision-makers to make decisions on their behalf in the event they become incapacitated. In Canada, there are generally two types of appointments, governing decisions in different spheres of life. The appointments are made in separate documents, generally being:

  1. A Power of Attorney, which appoints a substitute decision-maker to deal with financial matters; and
  2. A Personal Directive (or Health Care Directive), which appoints a substitute decision-maker to deal with health care and personal decisions.

Although these documents have different names throughout Canada, they are referred to here as a “PoA” and a “PD”.

In order for a PoA and a PD to be valid and effective, they must meet certain requirements in terms of both their creation and their execution. Each province and territory has its own set of rules; and while meeting the formal requirements of one jurisdiction is not generally a problem, it is sometimes not enough in our increasingly mobile society.

For instance, if an individual lives in Alberta, has an Alberta PoA and PD, and is subsequently incapacitated in Alberta, their PoA and PD would likely be effective and binding without issue. However, consider a scenario in which that individual is incapacitated while staying at their vacation home in British Columbia (“BC”). In that case, the Alberta PoA and PD may not meet the requirements to be valid under BC legislation. As a result, the individual’s PoA and PD may not be recognized as effective in BC, and their careful planning may not be implemented.

Many provinces have established processes for recognizing substitute decision-maker appointments from other jurisdictions, in an effort to make the recognition of inter-provincial PoAs and PDs somewhat simpler. However, these rules and requirements are inconsistent and variable, leading to uncertainty about how they may be applied in any given situation. As a result of this uncertainty, many Canadians require substitute decision-making documents to be prepared for each jurisdiction in which they live, work and vacation to ensure their planning is binding, regardless of where they may become incapacitated. The lack of consistent recognition of inter-provincial PoAs and PDs ultimately adds unnecessary complications to the plans Canadians have prepared for their futures and leads to inefficient and expensive duplication.

The Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act

In response to the problems created by the lack of consistent recognition of inter-provincial PoAs and PDs, the Uniform Law Conference of Canada and the U.S. Uniform Law Commission developed the Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act (the “Act”). The Act is intended to support existing provincial legislation by establishing a process for recognizing out-of-province (and out-of-country) appointments and unifying existing recognition procedures. The Act functions as a guide for aiding the provinces to reach a uniform standard. The Act is currently in draft form and proposes two potential approaches for provincial governments to employ when establishing or amending their recognition procedures. The description of these approaches provided below is a high-level and simplified summary – each approach has a level of nuance and detail that cannot be covered here.

The first approach separates the issue of formal validity (the legal requirements necessary to make the document itself valid, such as signing requirements) from the issue of essential validity (the validity of the powers granted within the document). Notably, this separation may allow for the laws of more than one province to apply to a single document. For example, consider the case of an Alberta resident who has an Alberta PoA and PD, but is incapacitated while staying at their vacation home in BC. Under this approach, the formal validity of the Alberta PoA and PD may be assessed based on Alberta’s requirements, but the essential validity of the documents may be assessed based on BC’s requirements.

The second approach is less complex, suggesting that the documents simply be evaluated in accordance with the rules of the province indicated in the document or the laws of the province where the person is habitually resident. Using the example given above, the individual’s Alberta PoA and PD could then be recognized in BC so long as they meet Alberta’s requirements, both for the formal execution of the documents and the types of authority that are granted (i.e. both formal and essential validity).

In addition to the suggested approaches, the Act proposes a public policy exception, which would allow a province to refuse to apply the law applicable to the substitute decision-making documents if the applicable law is “…contrary to [the enacting province’s] conception of essential justice or morality or to its fundamental public policies.” While this exception is unlikely to be triggered with respect to PoAs, it may become relevant in circumstances dealing with the giving or withholding of certain medical decisions or procedures under PDs.

Moving Forward

Although the first approach is somewhat more complex than the second approach, the first approach more closely tracks the method historically used in Canada to assess substitute decision-making documents. Given that history, there is a settled body of law making the distinction between formal and essential validity fairly easy to apply. In addition, the first approach corresponds to the method adopted by the American Uniform Law Commission. Given the number of Canadians who work and vacation in the United States, uniformity between countries could be beneficial. These factors have led to the Alberta Law Reform Institute’s recommendation that the Alberta government adopt the first approach.

Consultation has been taking place across Canada in an effort to determine how best to implement the Act, and it will be interesting to see if and how the Act is implemented across the country. Uniformity would be beneficial to the individuals creating substitute decision-making documents and to the individuals implementing them. Often, the decisions being made under these documents are important, urgent and emotional. Canadians who have planned ahead and prepared substitute decision-making documents should be able to count on those documents wherever they may travel in the country.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

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