Canada: Best Interests Or Expressed Wishes: What Takes Priority In A Personal Directive?

Last Updated: May 5 2015
Article by Peter C. Rumscheidt and Harry D. Thompson

Justice Boudreau of the Nova Scotia Supreme Court was called upon to assess this issue in the matter of B.M. v. K.S.  Her Ladyship concluded that a clear and unequivocal expression of interest in a Personal Directive should normally be followed even if it is arguably not in the objective best interests of the person who signed the Personal Directive. 

Background

In the decision the Court referred to the various parties only by their initials.  Mrs. L. was 94 years old and lived in her home in the Yarmouth area.  Her husband, Mr. L., had passed away in September 2012.  Since that time Mrs. L. had continued to live in the family home but required the assistance of care workers 24 hours per day and seven days per week.

Mrs. L. executed a Personal Directive on March 1, 2012.  She appointed her son, B.G.M. as her delegate.  On that same day she also signed an Enduring Power of Attorney which appointed BMO Trust Company and P.S. as Co-Attorneys. 

The Personal Directive included the following provision:

"Home care

I express the wish that my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged, including the assistance of a full-time caregiver to allow me to remain in my house, no matter what my physical or mental condition  might be."


The Enduring Power of Attorney had a corresponding clause as follows:

"Home care

I express the wish that my attorney (in conjunction with my delegate) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged, including the assistance of a full-time caregiver to allow me to remain in my house, no matter what my physical or mental condition  might be."


BMO Trust Company managed a trust fund for Mrs. L. The cost of the in home care arrangements were paid from the fund.  The evidence indicated that the balance in the fund would allow the home care to be paid for at least a further two years from the time of the Court application. 

In his capacity as Mrs. L.'s delegate, her son, B.M., commenced a Court application seeking the direction of the Court.  Among other things, he sought an order declaring that the homecare provision of the Personal Directive no longer had effect such that he could move his mother to a nursing home facility.  The evidence he put forward was that his mother's best interests would be served if she moved to a nursing home where she could interact with others and have an increased level of stimulation.

The Co-Attorneys under the Power of Attorney opposed the application.  The evidence of the individual Co-attorney was that Mrs. L. would not be best served by moving from her home.  It was his belief that she would find this disorienting and unsettling.

The delegate took the position the words in the Personal Directive were merely a "wish" of Mrs. L. rather than a firm "instruction".  As such, in his submission, they were not binding, particularly if the evidence confirmed that Mrs. L.'s best interests would be served by moving her to a nursing home. 

After reviewing the applicable provisions of the Personal Directives Act and referencing an Alberta decision which had addressed the issue, Justice Boudreau rejected the delegate's submission that a distinction could or should be drawn between the terms "wishes" and "instructions".  Justice Boudreau stated:

"I note that the Act is imprecise as to this question.  Section 3(1)(a) mentions 'setting out instructions or an expression of the maker's values, beliefs and wishes'; this is a distinction without a difference.  Section 15 states: 'in making any decision, a delegate shall (a) follow any instructions in a personal directive ...' but later states: 'in the absence of instructions, [the delegate must] act according to what the delegate believes the wishes of the maker would be ...'.  Section 31(3) of the Act again uses both words 'wishes' and 'instruction' without any differentiation."

In light of her interpretation of the relevant provisions of the Act and the wording of the Personal Directive, Justice Boudreau concluded as follows:

"In my view, in this particular case, it is not material that Mrs. L. used the words 'wish' instead of 'instruct' in respect of the request at section 9 of her Directive.  It was a clear, important, and unequivocal direction.  Pursuant to section 15 of the Act the delegate must follow directions.

...

Paragraph 9 of the Directive is clear.  Mrs. L. wished to remain in her home, so long as it was possible.  As matters presently stand, it remains possible.  Whether this is or is not, in her 'best interest' is not for this court to determine.  This is her expressed wish and I order that this provision of her Directive be respected by her delegate.  J.L. is to remain in her home under the present care-giving and financial arrangements for so long as it remains possible."


Conclusion

The decision confirms that a clear and unequivocal direction contained in a Personal Directive will be given significant deference and respect by the Court.  It reinforces the need for clarity and precision in the drafting of Personal Directives.

It does appear that the door has been left open for a departure from or an overriding of language in a Personal Directive if the wording is insufficiently clear and subject to interpretation.  It is to be noted that in this case there was conflicting evidence as to what was or was not in the best interests of Mrs. L.  In future matters, perhaps there would be a different result if there was imprecision in the language of the Personal Directive combined with uncontested evidence that a departure from the terms of the Personal Directive would be in the best interests of the incompetent person.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Peter C. Rumscheidt
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions