Personal Directive | Nova Scotia
I am pleased to announce that the Power of Attorney Wizard can now be used to create a Personal Directive for individuals in Nova Scotia:
Now you can create your own Last Will and Testament using the Will-O-Matic Wizard, and your own Power of Attorney for Property / Finances and a Personal Directive using the Power of Attorney Wizard as well!
If you’d like to know more about Personal Directives in Nova Scotia…keep reading… This is the second blog. The first blog can be read here.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.
What are the legal requirements to have a Personal Directive?
To have a valid Personal Directive under section 3 of the Personal Directives Act, the Personal Directive:
- Must be made by someone who is at least 19 years old.
- Must be written, dated, and signed at the end by the Maker in the presence of a witness.
- May authorize a person to be a Delegate to make personal care decisions on the Maker’s behalf.
- Must be made by someone who understands the nature and effect of a Personal Directive.
- Must be signed by one witness who IS NOT: a minor, the Delegate, the Delegate’s spouse, or a person who signs the Personal Directive on the Maker’s behalf.
With respect to the requirement that a Maker must have sufficient capacity to make a Personal Directive, the Maker must understand:
- the kinds of personal matters over which he or she is giving power;
- the authority that is being given to the Delegate;
- whether the person they name as their Delegate is truly concerned with their well-being;
- that they may need the Delegate to make decisions for them;
- that, as long as they are mentally capable of doing so, they can revoke the Personal Directive; and
- that there is always a chance that the Delegate can misuse his or her authority.
Is there a standard form Personal Directive?
Is a lawyer required?
The Personal Directives Act does NOT require that a lawyer prepare or help you complete a Personal Directive. That said, if you have a complicated situation, it may be worthwhile to engage a lawyer to prepare a Personal Directive for you. If you are worried that a party may challenge in the future your mental capacity to make the power of attorney, you should also consult a lawyer. They will know how to legally address this situation (e.g. by getting a medical report confirming your capacity at the time you make the Personal Directive) to reduce the risk of future challenges.
When does a Personal Directive take effect?
A Personal Directive, or part of a Personal Directive, takes effect with respect to a personal matter (e.g. healthcare, housing, treatment, etc.) ONLY when the Maker lacks capacity with respect to that matter: section 9 of the Personal Directives Act. So a Maker may maintain capacity with respect to certain personal matters, but lack capacity with respect to other personal matters. So when does a Maker “lack capacity”? Assessments of capacity are carried on by physicians under the Personal Directives Act (section 10) and the Personal Directives Regulations, N.S. Reg. 31/2010 (section 4). Those regulations provide for a specific form that a physician conducting an assessment of capacity must complete.