Statutes in all Canadian and United States jurisdictions permit individuals to delegate substitute decision-making authority. The majority of these statutes, however, do not have portability provisions to recognize the validity of substitute decision-making documents created in another jurisdiction. Lack of interjurisdictional recognition of substitute decision making documents defeats the purpose of a substitute decision-making plan. Once an individual has lost capacity, rejection of a substitute decision-making document often results in a court application to appoint a representative to act for the incapacitated individual, which burdens judicial resources and undermines the individual’s self-determination interests. The Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act (the “Act”) is a joint endeavour of the Uniform Law Commission and the Uniform Law Conference of Canada, undertaken to promote the portability and usefulness of substitute decision-making documents.

The term substitute decision-making document is intended to be an omnibus designation for a document created by an individual to delegate authority over the individual’s property, health care, or personal care to a substitute decision maker. Jurisdictions use different nomenclature for substitute decision-making documents. Common terms include power of attorney, proxy, and representation agreement. In some jurisdictions, delegated authority over property, health care, and personal care may be granted in one document. More commonly, separate delegations are made, and in some jurisdictions are required to be made, with respect to property decisions and those affecting health care and personal care. In Québec, the protection mandate has as its object the performance of acts intended to ensure the personal protection of the mandator, the administration, in whole or in part, of his patrimony and, generally, his moral and material well-being, should he become incapable of taking care of himself or administering his property (art. 2131 and 2166 and following C.c.Q.). Article 15 of the Civil Code of Québec provides that « Where it is ascertained that a person of full age is incapable of giving consent to care required by his or her state of health and in the absence of advance medical directives, consent is given by his or her mandatary, tutor or curator. If the person of full age is not so represented, consent is given by his or her married, civil union or de facto spouse or, if the person has no spouse or his or her spouse is prevented from giving consent, it is given by a close relative or a person who shows a special interest in the person of full age ». Section 62 of an Act respecting End-of-life Care, CQLR, chapter S-32.0001, provides that « Instructions relating to care expressed in a protection mandate do not constitute advance medical directives within the meaning of this Act and remain subject to articles 2166 and following of the Civil Code. In case of inconsistency between those instructions for care and the instructions contained in advance medical directives, the latter prevail».

The Act does not apply to documents that merely provide advance directions for future decisions such as living will declarations and do-not-resuscitate orders. The critical distinction for purposes of this Act is that the document must contain a delegation of authority to a specific decision maker.

The Act embodies a three-part approach to portability modelled after the Uniform Law Commission’s Uniform Power of Attorney Act (2006) (the “UPOAA”). First, similar to Section 106 of the UPOAA, Section 2 of the Act recognizes the validity of substitute decision-making documents created under the law of another jurisdiction. The term “jurisdiction” is intended to be read in its broadest sense to include any country or governmental subdivision.

Second, Section 2 creates two options. Option 1 separates out formal validity, whereas Option 2 applies the same law to all aspects of validity, i.e., the existence, extent, modification and extinction of the document (including formal validity). Section 4 explicitly recognises the concept of public policy. Option 2 should be adopted by those jurisdictions where the Hague Convention on the Protection of Adults has already been implemented and by those jurisdictions contemplating its implementation in the near future.

Third, Sections 5 and 6 of the Act protect good faith refusal or acceptance of a substitute decision-making document without regard to whether the document was created under the law of another jurisdiction or the law of the enacting jurisdiction. Under Section 5(4) refusals in violation of the Act are subject to a court order mandating acceptance.

The remedies under this Act are not exclusive and do not abrogate any other right or remedy in the adopting jurisdiction. The Act is designed to complement existing statutes by providing portability features where none exist and by supplementing provisions that lack desirable features of the Act.

Section 1 Comments

The Definitions explain the meaning of terms used in the Act and should not be read to define the meaning of terms used in a substitute decision-making document. The meaning of a term used in a substitute decision-making document is determined by the law applicable to the existence, extent, modification and extinction of a document. See Section 2 Comment.

The definitions of “health care,” “personal care,” and “property” in this section are intended to be read in their broadest sense to include any substitute decision-making document created by an individual to authorize decisions with respect to that individual’s property, health care, or personal care. The scope of the decision-maker’s authority under such a document, however, is to be determined by the applicable law. For example, authority with respect to “health care” may include authority to withhold or withdraw life prolonging procedures in some jurisdictions and not in others.

Note: Jurisdictions should review the definitions to determine whether all are required or appropriate for their own jurisdiction. “ In a civil law context, there is no need to define “property”. Some Interpretation Acts already define “person”. The definition aims to cover any person or entity to whom a substitute decision-making document is presented. Therefore, in civil law, the liquidator of a succession, and, in common law, the executors and administrators are included.

The Conference has put forward two options for how to deal with the question of applicable law. The first option is closer to the conventional approach in wills and health care directives. In this approach, a distinction is made between formal and essential validity. Slightly more generous provisions govern formal validity and include the place where the document is created. This is also in line with the approach taken by the ULC which distinguishes between “validity” and “meaning and effect.” Formal requirements are designed to ensure that the creator of the document understands its nature and consents to create it. The jurisprudence around the distinction between formal and essential validity is well developed, but there may be situations where a particular requirement straddles the two, or even where different jurisdictions characterize the requirement differently.

The second option tracks the language of section 15 of the Hague Convention on Protection of Adults. Under this approach, all elements of “existence, extent, modification and extinction” are governed by one law. This approach removes any need to distinguish between formal and essential validity and therefore any problems created by the distinction. All aspects of formal and essential validity are subsumed in the phrase “existence, extent, modification and extinction.”

In the vast majority of cases, the two approaches will yield the same result, in that place of entering into the document, habitual residence and nationality will be one and the same. A jurisdiction which chooses Option 1 will have to revisit the provisions, if and when implementation of the Adult Convention is considered.