Personal Directives Act

Consolidated act

Citation: S.N.W.T. 2005, c.16
Source: Unofficial consolidation PDF (justice.gov.nt.ca)

This is an unofficial reading copy parsed from the Department of Justice consolidation PDF above — itself an office consolidation, not an official statement of the law. The authoritative text is in the Revised Statutes of the Northwest Territories, 1988 and the annual Statutes volumes.

s.1 amended by Miscellaneous Statute Law Amendment Act, 2024
s.3 amended by Miscellaneous Statute Law Amendment Act, 2022
s.13 amended by Human Tissue Donation Act
s.33 repealed by Miscellaneous Statute Law Amendment Act, 2010

Cites

Cited by

Contents

1. Definitions 2. Purpose of Act 3. Application 4. Eligibility to make personal directive 5. Contents of personal directive 6. Requirements of personal 7. Combination with power of attorney 8. Revoking personal directive 9. Taking effect 10. Ceasing to have effect 11. Agent’s authority 12. Duties of agent 13. Limitation on eligibility 14. Resignation of agent 15. Duty to consult 16. Decision by majority of joint agents 17. Record keeping 18. Remuneration 19. Duty of inquiry 20. Application to service provider 21. Duties of service 22. Continuing duty to consider capacity 23. Acting on personal decision 24. Providing emergency medical services or first aid 25. Application 26. Decision of Supreme Court 27. Protection from liability for agent 28. Entitlement 29. Access to confidential information 30. Destruction, concealment or alteration of personal directive 31. Penalty 32. Regulations 33. Repealed

The Commissioner of the Northwest Territories, by and with the advice and consent of the Legislative Assembly, enacts as follows:

Interpretation and Application

Definitions

In this Act,

"adult" means a person who is 19 years of age or older; (adulte)

"agent" means a person designated in a personal directive and authorized to make personal decisions on behalf of the director; (mandataire)

"authorized representative" means an attorney authorized to act for the director under the Powers of Attorney Act or a guardian or trustee for the director under the Guardianship and Trusteeship Act; (représentant autorisé)

"capacity" means the ability to

(a) understand the information that is relevant to the making of a personal decision, and

(b) appreciate the reasonably foreseeable consequences of that personal decision; (capacité)

"director" means a person who makes a personal directive; (auteur)

"health care" means any examination, procedure, service or treatment that is performed for a therapeutic, preventive, palliative, diagnostic or other health related purpose, including life-support and resuscitation; (soins médicaux)

"nearest relative" means, with respect to a director, the adult relative of the director, other than an agent, who is living, has capacity and is both the first mentioned in the following list and the eldest of two or more relatives of the same category:

(a) spouse,

(b) child,

(d) sibling,

(e) grandparent,

(f) grandchild,

(g) parent’s sibling,

(h) sibling’s child; (parent le plus proche)

"personal decision" means any decision that relates to the director’s personal matters, including the giving, refusal or withdrawal of consent to health care; (décision personnelle)

"personal directive" means a written document in which the director provides for his or her health care or other personal matters; (directive personnelle)

"personal matters" means anything related to the director that a personal directive may provide for under section 5; (affaire personnelle)

"personal service" means any service provided to a director in respect of health care or other personal matters; (service personnel)

"Public Guardian" means the Public Guardian appointed under the Guardianship and Trusteeship Act; (tuteur public)

"service provider" means a person who carries on a business or profession that provides, or who is employed to provide, a personal service to an individual, if the service requires a significant personal decision from the individual before it is provided; (prestataire de services)

"spouse" means a person who

(a) is a spouse of another person within the meaning assigned to that term by section 1 of the Family Law Act, or

(b) has been living together with another person in a conjugal relationship outside marriage for a period of less than two years but not less than one year. (conjoint)

SNWT 2024,c.9,s.22.

Purpose of Act

The purpose of this Act is to allow adults to arrange in advance how, when and by whom decisions about their health care and other personal matters will be made if they later lack the capacity to make those decisions themselves.

Application

(1) This Act applies to personal directives made in the Northwest Territories after the coming into force of this Act.

Effect of personal directives made outside Northwest Territories

(2) A personal directive made in another jurisdiction has the same effect as if it were made in accordance with this Act if

(a) a lawyer entitled to practise law in that jurisdiction has certified in writing that the directive meets the requirements relating to the formalities of execution for personal directives under the legislation of that jurisdiction; or

(b) the directive would have met the applicable requirements of section 6 had it been made in the Northwest Territories.

Requirements not met

(3) A personal directive made in another jurisdiction that is not described by paragraph (2)(a) or (b) has no legal effect in the Northwest Territories. SNWT 2023,c.7,s.32.

Personal Directive

Eligibility to make personal directive

(1) An adult may make a personal directive.

Understanding nature and effect

(2) A person who does not understand the nature and effect of a personal directive may not make that directive.

Presumed capacity

(3) An adult is presumed to understand the nature and effect of a personal directive.

Represented person

(4) A person who is the subject of a guardianship order under the Guardianship and Trusteeship Act may not make a personal directive with respect to a matter that is a subject of that order.

Contents of personal directive

(1) A director may provide for any of the following in his or her personal directive:

(a) information about the director’s values, beliefs and wishes;

(b) instructions on the making of personal decisions for the director at any future time when he or she lacks capacity;

(c) the designation of one or more agents and their authority to make personal decisions on behalf of the director in the future if he or she lacks capacity to make those decisions;

(d) the designation of an alternate to act in place of an agent who is unable or unwilling to carry out his or her functions as an agent;

(e) the delegation of functions of an agent to another person;

(f) the payment of an agent for the performance of his or her functions as an agent or for the provision of personal services to the director;

(g) the designation of the persons who are or are not to be notified if the directive takes effect;

(h) instructions respecting access to confidential information about the director;

(i) any other prescribed matter.

Prohibited matters

(2) A provision in a personal directive has no legal effect if it

(a) provides for the transfer of property;

(b) provides for the management or administration of a person’s financial affairs; or

Examples

(3) For greater certainty, the following are examples of matters that may be included in a personal directive:

(a) the making of arrangements for the director’s accommodation;

(b) the making of decisions regarding the persons with whom the director may live and associate;

(d) the resolution of disputes between an agent designated in the directive and an attorney appointed by the director under a power of attorney;

(e) the giving of consent, in specified circumstances, to specified kinds of health care;

(f) the refusal of consent to specified kinds of health care, including life-supporting care or treatment, despite the fact that there may be a medical benefit to the director.

Public Guardian

(4) A director may, with the prior written consent of the Public Guardian, designate the Public Guardian as an agent.

Requirements of personal

(1) A personal directive must contain

(a) the director’s full name and signature;

(b) the full name and signature of any person designated as an agent;

(c) a declaration by any person designated as an agent that he or she is eligible to be an agent and that he or she is aware of and accepts the instructions in the directive and the duties of an agent under the Act;

(d) the name and signature of a witness to the signature of the director; and

(e) the name and signature of a witness to the signature of an agent.

Witness to signatures

(2) The director and agent must each

(a) sign and date the personal directive in the presence of a witness; or

(b) acknowledge his or her signature in the presence of a witness.

Presence of witness

(3) The witness must sign the personal directive in the presence of the director or agent whose signature is being witnessed.

Inability to sign

(4) If the director is unable to read or sign a personal directive,

(a) the directive must be signed at the director’s request by another person on behalf of the director;

(b) that other person must sign the directive in the presence of both the director and a witness or the director must acknowledge the signature in the presence of a witness; and

Disqualified persons

(5) An agent or his or her spouse may not sign a personal directive on behalf of the director under subsection (4).

Disqualified witnesses

(6) The following persons may not witness the director’s signature to a personal directive:

(a) an agent;

(b) the spouse of an agent;

(d) a person who signs the directive on behalf of the director under subsection (4);

(e) the spouse of a person who signs the directive on behalf of the director under subsection (4).

Legal effect

(7) A personal directive that does not meet the requirements of this section has no legal effect.

Combination with power of attorney

(1) A personal directive may be combined with a power of attorney into a single document, and the requirements of this Act and the Powers of Attorney Act apply to the respective parts of the document.

Other matters

(2) A power of attorney that is combined with a personal directive may provide for matters referred to in paragraphs 5(2)(a) and (b).

Revoking personal directive

(1) A director who understands the nature and effect of revoking a personal directive may revoke the directive in whole or in part in accordance with this section.

Manner of revocation

(2) A personal directive is revoked, in whole or in part as the case may be,

(a) on the date or occurrence of an event identified in the personal directive as triggering the revocation of all or part of the directive;

(b) on the making of a subsequent personal directive that contradicts the earlier directive, to the extent of the contradiction; or

(c) on the making of any document, including a subsequent personal directive, that expresses an intention to revoke all or part of the earlier directive.

Requirements

(3) A document referred to in paragraph (2)(b) or

Taking effect

(1) A personal directive is valid on execution and takes effect in respect of a matter specified in the directive only when it is determined that the director lacks capacity with respect to that matter.

Determination of lack of capacity

(2) For the purpose of subsection (1), the director is determined to lack capacity when two persons, each of whom is either a medical practitioner or a psychologist, jointly or separately assess the director’s condition and make a written and dated declaration that the director lacks capacity.

Copies of declaration

(3) When a determination of lack of capacity has been made under subsection (2), each medical practitioner or psychologist making an assessment and declaration must provide a copy of the declaration to

(a) the director;

(b) any agent;

(d) subject to any contrary instructions in the personal directive and if reasonably known, the nearest relative.

Notice to authorized representative and nearest relative

(4) Within a reasonable time after a personal directive takes effect with respect to a matter, the agent designated in the directive with respect to that matter must, subject to any contrary instructions in the directive, make every reasonable effort to notify the director’s nearest relative and any authorized representative that the directive is in effect.

Ceasing to have effect

10.

A personal directive ceases to have effect, in whole or in part, depending on the circumstances,

(a) in respect of a particular personal matter, during any period in which the director regains and has capacity;

(b) on the director’s death;

(d) on a determination by the Supreme Court under section 26 that the directive, or part of it, is invalid;

(e) on the issuance, in respect of the director, of a guardianship order under section 7 of the Guardianship and Trusteeship Act or a declaration of mental incompetence under section 31 of that Act; or

(f) in respect of a particular personal matter, when the agent authorized to make a personal decision in respect of that matter dies, has a loss of capacity or resigns, unless

(i) another agent is authorized to act by the Supreme Court under section 26,

(ii) the directive designates more than one person as agent and another agent remains able and willing to act, or

(iii) the directive provides for an alternate agent and that person is able and willing to act.

Agents

Agent’s authority

11.

(1) An agent has authority to make personal decisions respecting the director’s health care and other personal matters, unless this Act or the personal directive provide otherwise.

Effect of agent’s decisions

(2) A personal decision made by an agent in accordance with this Act has the same effect as if it had been made by the director while he or she had capacity to make that decision.

Duties of agent

12.

(1) An agent must

(a) act honestly and in good faith;

(b) exercise the care, diligence and skill of a reasonably prudent person; and

Delegation

(2) An agent may not delegate any of his or her functions as an agent to another person unless authorized to do so by the personal directive.

Limitation on eligibility

13.

(1) A person is not eligible to act as an agent under a personal directive if he or she

(a) is under 19 years of age;

(b) is not a natural person; or

Limitation on authority

(2) Unless the personal directive expressly provides otherwise, an agent shall not make a decision authorizing

(a) sterilization that is not medically necessary for the protection of the health of the director;

(b) the removal of tissue from the director’s living body for transplantation, a therapeutic purpose, medical education or scientific research;

(d) participation by the director in medical research or experimental activities, unless there is a reasonable likelihood of benefit to the director; or

(e) any other prescribed health care.

SNWT 2014,c.30,s.23.

Resignation of agent

14.

(1) An agent may resign by giving written notice to

(a) the director;

(b) any other agent and alternate agent designated in the personal directive;

(d) subject to any contrary instructions in the personal directive and if reasonably known, the nearest relative.

Effective date

(2) The resignation of an agent is effective

(a) as soon as written notice has been given to the persons entitled to notice under subsection (1); or

(b) on any later date specified in the written notice.

Duty to consult

15.

(1) Before making a personal decision in accordance with a personal directive, an agent

(a) shall make his or her best efforts to consult with the director about the decision; and

(b) may, subject to any contrary instructions in the directive, consult with any other person whose advice would assist the agent in making the decision.

Following instructions

(2) An agent shall make his or her best efforts to follow any instructions provided in the personal directive relevant to the decision to be made.

Lack of instructions

(3) If the personal directive does not contain clear instructions relevant to the personal decision to be made, an agent shall

(a) make the decision he or she believes the director would have made in the circumstances, based on the agent’s knowledge of the wishes, beliefs and values of the director; or

(b) if he or she does not know what the director’s wishes, beliefs and values are, make the decision that the agent believes is in the best interests of the director in the circumstances.

Decision by majority of joint agents

16.

(1) Subject to subsection (3) and the provisions of the personal directive, if two or more agents are appointed to act jointly,

(a) a decision of the majority, if there are three or more agents, is deemed to be a decision of them all; and

(b) if one of the agents dies, resigns, has a loss of capacity, or is unwilling to or, after reasonable inquiries, is not available to make a decision, the remaining agents may make the decision and the decision of the majority of those remaining is deemed to be the decision of them all.

Decision of joint agents if no majority

(2) Unless otherwise provided in the personal directive, if two or more agents appointed to act jointly disagree about the making of a decision and are unable to make a majority decision, the agent first named in the directive may make the decision.

Objection by joint agent

(3) If a decision is made by a majority under subsection (1) or by an agent under subsection (2), an agent who is under a duty to act under this Act is not liable for the consequences of the decision if he or she

(a) does not at the time of the decision vote for or consent to the decision; and

(b) provides a written objection to the decision to each of the other joint agents as soon as is reasonably possible after becoming aware of the decision.

Record keeping

17.

(1) An agent shall keep a record of each decision he or she makes under the personal directive, and shall retain that record until at least two years after his or her authority to act as agent ceases.

Access to record

(2) An agent shall, on request, provide a copy of a record to

(a) the director;

(b) any other agent with authority respecting a matter addressed in the record, but only in respect of those portions of the record relevant to that other agent’s authority; and

(c) any authorized representative of the director with authority respecting a matter addressed in the record, but only in respect of that portion of the record that is relevant to the representative’s authority.

Access by others

(3) An agent may, subject to any instructions in the personal directive, provide a copy of the record or any portion of it to any person not mentioned in subsection (2), if the agent considers that it is in the interests of the director to do so.

Remuneration

18.

An agent is not entitled to receive any remuneration for exercising any authority under a personal directive, unless the personal directive provides otherwise.

Service Providers

Duty of inquiry

19.

(1) Before providing a personal service to a person who appears to lack capacity to make a personal decision, a service provider shall make a reasonable effort to

(a) determine whether the person has made a personal directive;

(b) obtain a copy of the personal directive; and

Duty to verify identity and authority

(2) Before providing a personal service to a person at the direction of another person who claims to be an agent authorized to make a personal decision with respect to the provision of that personal service, the service provider shall make a reasonable effort to determine

(a) the identity of the person who claims to be an agent; and

(b) that the person has authority to make the personal decision.

Reasonable effort

(3) For the purposes of subsections (1) and (2), the reasonable effort required shall be no more onerous than is appropriate to the circumstances and the service to be provided.

Application to service provider

20.

(1) Sections 21 to 24 apply to a service provider who intends to provide a personal service to the director and is aware that

(a) the director has made a personal directive; and

(b) the personal directive is in effect.

Authorized service

(2) A personal service provided by a service provider in accordance with sections 21 to 24 is authorized to the same extent as if authority for the service had been given by the director while he or she had capacity.

Duties of service

21.

(1) A service provider shall make best efforts to

(a) follow an agent’s instructions that are relevant to the personal service to be provided; or

(b) follow any instructions in the personal directive that are relevant to the personal service to be provided, if

(i) the directive does not designate an agent in respect of the relevant personal matters, or

(ii) the designated agent is unable or unwilling to make a personal decision or cannot be contacted after reasonable efforts have been made.

Contacting authorized representative and nearest relative

(2) A service provider shall make reasonable efforts to contact any authorized representative and subject to any contrary instructions in the personal directive, the nearest relative, for the purpose of informing them of the circumstances, if

(a) an agent has not been designated under the personal directive in respect of the relevant personal matters, and the directive does not contain relevant instructions for the service provider to follow; or

(b) an agent has been designated under the personal directive in respect of the relevant personal matters, but cannot be contacted after the service provider has made reasonable efforts to do so.

Continuing duty to consider capacity

22.

(1) A service provider shall, before providing a personal service, make a reasonable effort to determine if the director continues to lack capacity, notwithstanding that he or she is aware that a determination has been made that the director lacks capacity.

Duty to notify agent

(2) A service provider who believes that the director has regained capacity to make a personal decision shall, before acting on the director’s personal decision, give notice of that belief to any agent who has been designated in respect of the relevant personal matters.

Contacting authorized representative and nearest relative

(3) A service provider who believes that the director has regained capacity to make a personal decision shall make reasonable efforts to contact any authorized representative and subject to any contrary instructions in the personal directive, the nearest relative, for the purpose of informing them of the circumstances, if

(b) an agent has been designated under the personal directive in respect of the relevant personal matters, but cannot be contacted after the service provider has made reasonable efforts to do so.

Reliance on previous determination

(4) A service provider who believes that the director continues to lack capacity may, in providing personal services to the director, continue to rely on the previous determination of lack of capacity.

Acting on personal decision

23.

(1) Notwithstanding the director’s lack of capacity, the service provider may act on the director’s personal decision if the agent designated in respect of the relevant personal matters does not object.

Agent’s objection

(2) If the agent objects to the service provider acting on the director’s personal decision, the service provider must not so act unless the Supreme Court determines that the director has the capacity to make that decision.

Emergency Medical Services or

First Aid Assistance

Providing emergency medical services or first aid

24.

(1) A service provider who is aware that a person has made a personal directive may provide emergency medical services or first aid assistance to the director without his or her consent, if he or she appears to lack capacity, and

(a) the directive does not contain relevant instructions, and either

(i) does not designate an agent in respect of the relevant personal matters, or

(ii) designates an agent in respect of relevant personal matters, but the agent

(A) is unable or unwilling to make the required personal decision, or

(B) cannot be contacted after reasonable efforts have been made; or

(b) a copy of the directive is not reasonably available to the service provider.

Notice of emergency service

(2) A service provider who provides emergency medical services or first aid assistance to a director under subsection (1), shall, as soon as is practicable, make a reasonable effort to give notice of the service provided to

(a) an agent designated in respect of the relevant personal matters; or

(b) if there is no agent designated in respect of the relevant personal matters, and subject to any contrary instruction in the personal directive, the nearest relative.

Application of Emergency Medical Aid Act

(3) Notwithstanding any provision of this Act or of a personal directive, the Emergency Medical Aid Act applies to emergency medical services or first aid assistance provided to a person who has made a personal directive.

Review by the Supreme Court

Application

25.

(1) A director or any other interested person may apply to the Supreme Court by originating notice for any remedy referred to in section 26.

Service of originating notice

(2) The originating notice must be served in accordance with the Rules of the Supreme Court of the Northwest Territories on

(a) the director;

(b) any prescribed person; and

Variation of service

(3) The Supreme Court may

(a) shorten the time for service;

(b) direct the manner of service or approve the manner of service that has been effected; or

Application without notice

(4) Notwithstanding subsection (2), an application may, with the approval of the Supreme Court, be made without notice.

Decision of Supreme Court

26.

(1) The Supreme Court may, on an application under section 25,

(a) make a determination of the capacity of a director or an agent, after considering a report made under paragraph (2)(b);

(b) determine the validity of all or part of a personal directive;

(c) review an agent’s decision under a personal directive and vary, confirm or rescind all or part of that decision, after considering any instructions contained in the personal directive;

(d) determine the authority of an agent;

(e) provide advice and directions in relation to a personal directive;

(f) stay a decision of an agent;

(g) make an order in relation to a personal directive or a decision made under this Act or a personal directive; and

(h) make any other order that the Supreme Court considers appropriate that is not inconsistent with a personal directive.

Ordering reports

(2) For the purposes of subsection (1), the Supreme Court may

(a) require an agent to provide the Court with a report of the personal decisions made by the agent; or

(b) require the preparation of a report by a medical practitioner or psychologist with respect to the capacity of a director or an agent.

Intent of director

(3) In making a decision under subsection (1), the Supreme Court may not add to or alter the intent of an instruction contained in a personal directive.

Costs

(4) The Supreme Court may order that the costs of any application made under this Act, including the costs of any report submitted to the Court in support of the application, be paid in whole or in part by

(a) a person in respect of whom the application is made, if the Court is satisfied that it would not be a hardship for the person to pay part or all of the costs; or

(b) a person making the application or a person opposing the application, if the Court is satisfied that the application or the opposition to the application is frivolous or vexatious.

Liability and Protection

Protection from liability for agent

27.

(1) No action lies against an agent for anything done or omitted to be done in good faith while carrying out his or her authority under a personal directive, if it was done or omitted to be done in accordance with this Act.

Agent’s liability for acts after termination

(2) If the authority of an agent is terminated, or is found to be invalid by the Supreme Court, the agent is not liable to the director or the estate of the director for subsequently acting under the personal directive if the agent did not know, and had no reasonable grounds to believe, that his or her authority had been terminated or found to be invalid.

Liability of agent acting in good faith

(3) If an agent mistakenly but reasonably believes in good faith that a personal directive has or has not come into effect, the agent is not for that reason alone liable for acting or failing to act under the personal directive.

Protection from liability for service provider

(4) No action lies against a service provider for anything done or omitted to be done in good faith while acting or purporting to act under a personal directive, if it was done or omitted to be done in accordance with this Act.

Further protection

(5) No action lies against an agent or service provider for anything done or omitted to be done in good faith in reliance on a personal directive, if

(a) the director changes or revokes the directive or revokes the authority of the agent; and

(b) the change or revocation is done without the knowledge of the agent or service provider, as the case may be.

Entitlement

28.

A personal decision made by an agent in good faith does not affect the entitlement of the agent, the agent’s spouse or anyone claiming through either of them, to

(a) a disposition under the will of the director;

(b) the proceeds of an insurance policy on the life of the director;

(d) an order under the Dependants Relief Act.

Confidential Information

Access to confidential information

29.

(1) Subject to any limitation set out in a personal directive, an agent or a person referred to in subsection 9(2) has the right to be provided with the information and records respecting the director that are relevant to the personal decision to be made on behalf of the director or to the determination of the director’s capacity.

Use of information

(2) An agent or a person referred to in subsection 9(2) may use the information and records described in subsection (1) only to perform the functions of the agent or to determine the director’s capacity.

Offences

Destruction, concealment or alteration of personal directive

30.

(1) Any person who, without the consent of the director, wilfully destroys, conceals or alters the director’s personal directive or a document revoking the directive or part of it, is guilty of an offence.

Unauthorized use of personal information

(2) An agent who, without the director’s consent, uses personal information about the director for a purpose not authorized under this Act or the personal directive is guilty of an offence.

Misrepresenta- tion

(3) A person who wilfully misrepresents himself or herself in relation to a personal directive or wilfully misrepresents the wishes of the director is guilty of an offence.

Requiring making of personal directive

(4) Any person who requires another person to make a personal directive as a condition for obtaining any goods or services, is guilty of an offence.

Improper influence

(5) Any person who coerces or exerts undue influence on another person to make a personal directive is guilty of an offence.

Contravention of Act or regulations

(6) A person who contravenes or fails to comply with a provision of this Act or the regulations is guilty of an offence.

Penalty

31.

A person who is guilty of an offence under this Act is liable on summary conviction to a fine not exceeding $10,000.

Regulations

32.

The Commissioner, on the recommendation of the Minister, may make regulations

(a) defining words or expressions used in this Act;

(b) determining whether anything is or is not a personal matter for any purpose of this Act;

(d) describing the categories of persons to be contacted or given notice for any purpose of this Act;

(e) respecting a central registry for personal directives, including its establishment and operation, the effect of registration and access to information in the registry;

(f) respecting any forms that are necessary for the administration of this Act;

(g) respecting the inclusion of information in or related to a personal directive in a director’s medical records;

(h) prescribing any matter or thing that may be prescribed under this Act; and

(i) respecting any other matter the Commissioner considers necessary for carrying out the purposes and provisions of this Act.

33.

- 35. Repealed, SNWT 2010,c.16,Sch.B,s.19.