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Advance Directives

LegalWills.ca is dedicated to providing services related to advance directives.  Sometimes these are incorrectly referred to as "advanced directives".  Below are some questions and answers related to advance directives.

What are advance directives?

"Advance directive" is a general term that refers to your oral and written instructions about your future medical health care, in the event that you become unable to speak for yourself.  Each state, province and country regulates the use of advance directives differently. There are two types of advance directives: a living will (also called a power of attorney for health care, or power of attorney for healthcare directives, or power of attorney for personal care), and a power of attorney (also called a durable power of attorney, or enduring power of attorney, or continuing power of attorney for property, or durable power of attorney for finances). By specifying your medical advance directives you can decide in advance what medical treatment you want to receive in the event that you become physically or mentally unable to communicate your wishes.

Why do I need an advance directive?

Advance directives give you a voice in decisions about your medical care and financial issues when you are unconscious or too ill to communicate. As long as you are able to express your own decisions, your advance directives will not be used and you can accept or refuse any medical treatment. But if you become seriously ill, you may lose the ability to participate in decisions about your own treatment and finances.

What are my rights as a patient?

All adults in hospitals, skilled nursing facilities, and health care settings have certain rights. For example, you have a right to confidentiality of your personal and medical records and to know what treatment you will receive.

You also have another right. You have the right to prepare a document called an "advance directive" or sometimes called an "advanced directive".  In one type of advance directive, you state in advance what kind of treatment you want or do not want if you ever become mentally or physically unable to choose or communicate your wishes. In a second type, you authorize another person to make those decisions for you if you become incapacitated. Federal laws requires hospitals, skilled nursing facilities, hospices, home health agencies and health maintenance organizations (HMOs) in the United States serving persons covered by either Medicare or Medicaid to give you information about advance directives and explain your legal choices in making decisions about medical care.

The law is intended to increase your control over medical treatment decisions. Be mindful, however, that federal, state and provincial laws governing advance directives do differ. The health care provider is required to give to you information about the laws with respect to advance directives for the country, state or province in which the provider is located. If you reside in another jurisdiction, you may wish to gather information about your laws from another source.

What is an Advance Directive?

Generally, an advance directive is a written document you prepare stating how you want medical decisions made if you lose the ability to make decisions for yourself.  The two most commonly prepared advance directives are:

  • a "Living Will" or "Power of Attorney for Health Care" or "Power of Attorney for Personal Care" (see Living Will); and
  • a "Power of Attorney" or "Durable Power of Attorney" or "Enduring Power of Attorney", or "Continuing Power of Attorney for Property" or "Durable Power of Attorney for Finances" (see Power of Attorney)

The value of an advance directive is that it allows you to state your choices for health care and financial handling or to name someone to make those choices for you, if you become unable to make decisions about your medical treatment and other important decisions. In short, an advance directive regarding your health care ensures your right to accept or refuse medical care. You can say "yes" to treatment you want, or "no" to treatment you don't want.

Living Will

A living will generally states the kind of medical care you want (or do not want) if you become unable to make your own decision. It is called a living will because it takes effect while you are still living. Most countries, states and provinces have their own living will forms, each somewhat different. It may also be possible to complete and sign a preprinted living will form available in your own community, draw up your own form, or simply write a statement of your preferences for treatment. You can also include instructions about any treatment you want to avoid.  You may also wish to speak to an attorney or your physician to be certain you have completed the living will in a way that your wishes will be understood and followed.  Here at LegalWills.ca, we take care of all that for you, through our MyLivingWill™ service.

A "Living Will" goes by many different names, depending on your local jurisdiction.  Some examples are: "personal directive", "health care directive", "power of attorney for personal care", "advance health care directive", "power of attorney for health care", "power of attorney for healthcare directives", or just simply "advance directives".  Regardless of what it is called in your area, the LegalWills.ca MyLivingWill™ service will format a legal document that is correctly worded for your local jurisdiction.

Durable Power of Attorney for Finances

In many countries, states and provinces, a durable power of attorney for finances is a signed, dated, and witnessed paper naming another person, such as a husband, wife, daughter, son, or close friend, as your authorized spokesperson to make financial decisions for you if you should become unable to make them for yourself. Some states have specific laws allowing a power of attorney, and provide printed forms.  Here at LegalWills.ca, we allow you to create a durable power of attorney using our MyPowerOfAttorney™ service.

A "Power of Attorney" goes by many different names, depending on your local jurisdiction.  Some examples are: "durable power of attorney", "enduring power of attorney", "continuing power of attorney for property", or "durable power of attorney for finances".  Regardless of what it is called in your area, the LegalWills.ca MyPowerOfAttorney™ service will format a legal document that is correctly worded for your local jurisdiction.

Will my wishes be honored if I am not in my country/state/province of residence?

The law on honoring an advance directive from one country, state or province to another is unclear. However, because an advance directive specifies your wishes regarding medical and financial care, it may be honored wherever you are, if you make it known that you have an advance directive. But if you spend a great deal of time in a location other than your home jurisdiction, you may wish to consider having your advance directive meet the laws of both jurisdictions, as much as possible.

Do I need to prepare an Advance Directive?

You do not have to prepare an advance directive if you do not want one. If you do prepare one, you have the right to change or cancel it at any time. Any change or cancellation should be written, signed, and dated in accordance with your local laws, and copies should be given to your doctor, or to others to whom you may have given copies of the original. In addition, some localities allow you to change an advance directive by oral statement.

If you wish to cancel an advance directive while you are in the hospital, you should notify your doctor, your family, and others who may need to know. Even without a change in writing, your wishes stated in person directly to your doctor generally carry more weight than a living will or durable power of attorney, as long as you can decide for yourself and can communicate your wishes. But be sure to state your wishes clearly and be sure that they are understood.

Make sure that someone, such as your lawyer or a family member, knows that you have an advance directive and knows where it is located. You might also consider the following:

  • If you have a durable power of attorney, give a copy or the original to your agent or proxy.
  • Ask your physician to make your advance directive part of your permanent medical record.
  • Keep a copy of your advance directive in a safe place where it can be found easily, if it is needed, such as globally on the Internet to your designated "Keyholders®" at LegalWills.ca.
  • Keep a small card in your purse or wallet stating that you have an advance directive, where it is located and who your agent or proxy is, if you have named one.  LegalWills.ca allows you to order wallet cards specifically for this purpose.

Who should prepare an Advance Directive?

You may want to consider preparing an advance directive if:

  • You want your physician or other health care provider to know the kind of medical care you want or don't want if you become incapacitated.
  • You want to relieve your family and friends of the responsibility, for making decisions regarding life-prolonging actions.

Does it matter where I live?

Services such as MyFuneral™, MyLifeLocker™, MyVault™, and MyMessages™ do not create legal documents and make no assumptions about your country of residence. 

We have worked extensively with lawyers in Canada to ensure that the legal documents created by the MyWill™, MyExpatWill™, MyPowerOfAttorney™ and MyLivingWill™ services are up to date with the laws in all of the states in the United States and the provinces in Canada, including: Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Saskatchewan, and Yukon.  Hence, our services can be used to generate legal documents in any Canadian province with the exception of Quebec. If you are in Quebec, you can consider downloading a Quebec Will Kit from QuebecWillKit.ca.

If you have any doubts about the legal standing of any documents in your jurisdiction, feel free to seek legal counsel in your area to have your documents reviewed.

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