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Legal Ease: Providing advance medical instructions when consent is no longer possible

In December 2015, the province of Quebec passed legislation providing for “advance medical directives” and the creation of an advance medical directives register. This has created some confusion for people who have already provided instructions with regard to their healthcare in their “mandate in the event of incapacity.”

Both documents express the wishes of a person with full capacity to provide consent but only the mandate provides for substituted consent. It is the requirement that a person be capable of providing consent that underlies the importance of both the mandate and the directives.

Under Quebec law no one can be made to undergo medical care, testing or treatment of any nature without his consent. We also have the right to refuse. To make our will known we must be able to understand the diagnosis and the nature, risks, and benefits of the treatment. We are not able to validly consent to or refuse what we are incapable of understanding.

Lack of capacity is defined as any deficiency, whether mental, emotional, or physical, which would alter a person’s mental faculties and render him unable to make their will known. It is when we cannot make our will known that medical professionals will rely on, and treatment may depend on the advance directives, the mandate in the event of incapacity or the law.

Most people reading this already know about the mandate given in anticipation of incapacity. It is usually prepared by a notary or lawyer and must be confirmed by the court before it takes effect. The court will only confirm it once the incapacity of its author has been established. It usually provides for both personal care and administration of assets and can include much more than the advance directives.  For example it includes preferences with regard to living arrangements and possible placement, instructions to spend money for recreational activities and extras to enhance quality of life, a wish to remain at home as long as possible, instructions regarding a pet, permission for the representative to consult medical files, as well as any other wishes the person may have. The mandate will also name the person or persons chosen to carry out the person’s wishes.

Advanced Medical Directives is a document through which people of the age of majority, and capable of giving consent, can specify whether or not they consent to care that may be required by their state of health in the event they become incapable of giving consent. Advance medical directives are given in writing either in the presence of a notary or on a form provided by RAMQ in the presence of two witnesses. They can be changed, but only by providing another form according to this same procedure. At the time the directives are created, the author must have capacity. The directives are filed in the Advance Medical Directives register held by RAMQ and may be placed in one’s medical file. All health professionals are required to follow these directives.

On the form provided by RAMQ you are asked if you would consent or refuse specific treatments if you were in a specific health condition. The form lists the following:

  • you are suffering from a serious and incurable medical condition and are near end of life
  • you are in a permanent vegetative state
  • you are in an advanced state of dementia without any possibility of improvement.

In each of those conditions you are asked to consent to or refuse each of the following: cardiopulmonary resuscitation, respiratory or other life supporting mechanisms, dialysis, food, water.

There is a little box beside each so that you can tick “I consent” or “I refuse.” These directives would only take effect at such time as you were unable to provide consent to or refuse treatment.  A copy of the directives may be obtained by contacting RAMQ.

If the time comes when we lack capacity but need medical treatment, the instructions contained in our advance medical directives must and will be followed. These directives are considered to be our personal consent to, or refusal of treatment. If we have not provided advance medical directives, the medical professionals will look for substituted consent, which may be found in our mandate in the event of incapacity. In some cases where there is no valid mandate, the court may have designated a tutor or curator.  When there are no directives and no mandate, tutor or curator, substituted consent may be given by a spouse, close relative, or a person showing special interest.

I hope I have clarified the distinction between advance medical directives

and the mandate in the event of incapacity. The directives are very specific but can be quickly accessed by the medical professional. They apply only if you are in a very serious medical condition. The mandate has broader application and must be approved by the court before taking effect. There is no reason not to have both.

Editor’s Note: This is Joyce Blond’s last column as she has decided to focus her energies elsewhere. She has been a tremendous asset to The Senior Times, sharing her broad knowledge of the law and how it relates to our lives as we age. We will miss her superb column.

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One Comment

  1. Sylvia Wedge says:

    Many of The Senior Times’ readers will miss Joyce Blond Frank’s column with its wise advice for seniors, their relations and carers. Her writing touched on so many subjects particularly relevant to later life and imparted her knowledge in a simple, straight forward style. I hope she will consider an occasional column for important developments. In the meantime my thanks and best wishes for her future.

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