Personal Directives (Nova Scotia)

Personal Directives 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 third blog on this topic. The first blog can be read here and the second 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.

How can a Maker revoke a Personal Directive?

Pursuant to Section 12 of the Personal Directives Act, a Maker can revoke a Personal Directive at any time after making it if:

  • The Maker revokes the Personal Directive in writing, executed in the same way as the Personal Directive (i.e. be in writing, dated, signed, witnessed, etc.).
  • The Maker destroys the original Personal Directive with the intention of revoking it.

How can a Personal Directive cease to have effect?

If the Maker is mentally incompetent and is unable to revoke the Personal Directive (as discussed above), then the Personal Directive and the Delegate’s authority to act will continue until or unless terminated in any of the following circumstances (section 13 of the Personal Directives Act):

  • The Maker dies.
  • The Delegate dies, resigns, or lacks capacity to make personal-care decisions on behalf of the Maker.
  • The Maker revokes the delegate’s authority (see above) by revoking all or part of the Personal Directive.
  • A determination has been made that the Maker has regained capacity to make decisions with respect to a personal matter.
  • A Court orders that the delegate’s authority ceases.

Do you have to deposit your Personal Directive somewhere?

There is no requirement that you deposit your Personal Directive in any specific place.   With respect to what a Maker should do with the Personal Directive itself, it is best to leave it in a secure place (e.g. fireproof safe, with a trusted third party) and let your Delegate know where it is (or give him or her a copy).  Instead of making additional original versions of the Personal Directive, it is best to make one version and then have a lawyer notarize a true copy of that original.

What happens when I die?

The Personal Directive only has effect while the Maker is alive.  When the Maker dies, their Will (if they have one) or Nova Scotia’s intestate laws (if they do not have a Will) will govern the final disposition of their property.

Delegate’s Duty, Authority, and Limitations

Pursuant to section 15 of the Personal Directives Act, before exercising their authority, the Delegate MUST first:

  • generally follow any instructions in a Personal Directive (unless the Maker, while he or she had capacity, expressed a contrary wish; unless technological changes or medical advances make the instruction inappropriate in a way that is contrary to the Maker’s intentions; or unless circumstances exist that would have caused the maker to set out different instructions had the circumstances been known based on what the delegate knows of the values and beliefs of the maker and from any other written or oral instructions).
  • in the absence of instructions, act according to what the delegate believes the wishes of the maker would be based on what the Delegate knows of the values and beliefs of the Maker and from any other written or oral instructions.
  • where the delegate does not know the wishes, values and beliefs of the Maker, make the personal-care decision that the Delegate believes would be in the best interests of the Maker.

With respect to the last point above, the Delegate must consider all of the following (as per section 6 of the Personal Directives Regulations):

(a)    whether the Maker’s or person represented’s condition or well-being is likely to be improved by the proposed care or will not deteriorate because of it;

(b)    whether the Maker’s or person represented’s condition or well-being is likely to improve without the proposed care or is not likely to deteriorate without it;

(c)    whether the benefit the Maker or person represented is expected to obtain from the proposed care is greater than the risk of harm or other negative consequences;

(d)    whether the benefit of a less restrictive or less intrusive form of available care is greater than the risk of harm or other negative consequences.

Pursuant to section 17 of the Personal Directives Act, a Delegate has the right to access and to be provided with the information and records, including information and records subject to privilege, pertaining to the Maker that are relevant to a decision to be made.

Liability of the Delegate

Section 20(d) of the Personal Directives Act says that no action (i.e. no grounds to sue) can be brought against a Delegate for anything done or omitted to be done in good faith while carrying out their authority under the Act.

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