<<SR_PageTitle>>

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1The following definitions apply in this Act.

“decision” means a consent, refusal to consent or withdrawal of consent to treatment.(décision)

“health care professional” means a medical practitioner or a nurse practitioner who is registered under the laws of the Province as authorized to practise as a nurse practitioner.(professionnel de la santé)

“maker” means the maker of a health care directive.(auteur)

“proxy” means a person appointed in a health care directive to make decisions on behalf of the maker.(mandataire)

“spouse” means either of two persons who(conjoint)

(a) are married to each other, or

(b) are not married to each other but have cohabited continuously in a conjugal relationship for a period of at least two years.

“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment.(traitement)

Application

2If there is a conflict between this Act and the Mental Health Act, the Mental Health Act prevails.

Power of attorney for personal care

3A power of attorney for personal care under the Infirm Persons Act is not a health care directive.

Capacity of maker

4(1)A person who has the capacity to make decisions may make a health care directive.

4(2)For the purposes of this Act, a person

(a) has the capacity to make a decision if he or she is able to understand the information that is relevant to making the decision and able to appreciate the reasonably foreseeable consequences of the decision or lack of decision, and

(b) is presumed to have capacity, unless the contrary is demonstrated.

Content of health care directive

5(1)A health care directive may

(a) express the maker’s decisions, appoint a proxy or both,

(b) identify persons whom the maker wishes to have notified if the directive comes into effect, and

(c) include a general statement of the maker’s values, beliefs and wishes.

5(2)A health care directive may appoint two or more proxies who shall act successively, in the order named in the directive.

Execution of health care directive

6(1)A health care directive shall be in writing and shall be signed and dated by

(a) the maker, and

(b) a witness who is at least 19 years of age, at the direction and in the presence of the maker.

6(2)The witness shall not be the maker’s spouse, a proxy appointed in the health care directive or a proxy’s spouse.

6(3)If the maker is unable to sign and date the health care directive, another person may sign and date the directive on behalf of the maker, at the direction of the maker and in the presence of the maker and the witness.

6(4)The person who signs and dates a health care directive on behalf of the maker shall not be the maker’s spouse, a proxy appointed in the directive or a proxy’s spouse.

6(5)The name of the person under subsection (4) and the fact that the person signed and dated the health care directive on behalf of the maker shall be documented in the directive.

Substantial compliance

7(1)A health care directive made before the commencement of this Act that substantially complies with the requirements of this Act is deemed to be a health care directive made under this Act.

7(2) A health care directive made in Canada but outside the Province that substantially complies with the requirements of this Act is deemed to be a health care directive made under this Act.

7(3)If there is a dispute or any uncertainty as to whether a health care directive substantially complies with the requirements of this Act, an interested party may apply to The Court of Queen’s Bench of New Brunswick for a determination of the matter.

Coming into effect of health care directive

8(1)A health care directive becomes effective when the maker

(a) ceases to have the capacity to make a decision respecting a proposed treatment in the opinion of two health care professionals, or

(b) is unable to communicate his or her decision respecting a proposed treatment.

8(2)An opinion under paragraph (1)(a) shall be in writing.

8(3)If two health care professionals are of the opinion that the maker ceases to have the capacity to make a decision respecting a proposed treatment, one of the health care professionals shall inform the maker of their finding, if possible.

8(4)A health care directive continues to be effective for the duration of the maker’s incapacity or inability to communicate.

Effect of decisions

9(1)A decision expressed in a health care directive is as effective as if made by the maker when the maker had the capacity to make the decision.

9(2)A decision made by a proxy on behalf of a maker in accordance with a health care directive and this Act is as effective as if made by the maker when the maker had the capacity to make the decision.

9(3)For the purposes of subsection (2), a proxy must be mentally competent and at least 19 years old.

9(4)Despite subsection (3), the spouse of a maker who is appointed as a proxy may make a decision under this Act regardless of age.

Powers and duties of a health care professional

10(1)A health care professional who receives a health care directive of a patient shall retain a copy of the directive in the patient’s file.

10(2)A health care professional is not required to

(a) obtain a proxy’s consent before providing treatment in an emergency situation, or

(b) carry out a decision made in a health care directive or by a proxy if the health care professional objects on grounds of an ethical or conscientious nature.

Powers and duties of a proxy

11(1)A proxy shall act in accordance with the following principles:

(a) act in accordance with any decisions and statements of the maker’s values, beliefs and wishes expressed in a health care directive;

(b) if decisions are not expressed in a health care directive, act in accordance with any wishes that the proxy knows the maker expressed when the maker had capacity, and believes the maker would still act on if capable; and

(c) if decisions are not expressed in a health care directive and the proxy has no knowledge of the maker’s wishes, act in what the proxy believes to be the best interests of the maker.

11(2)Unless a health care directive expressly provides otherwise, a proxy shall not

(a) delegate his or her authority to make decisions, and

(b) collect or receive a fee or compensation for acting under his or her authority.

11(3)Subject to any express limitation in the health care directive, a proxy has the right to be provided with all the information necessary to make informed decisions on behalf of the maker.

Revocation of proxy

12(1)A proxy may refuse to act or may refuse to continue to act under a health care directive and, by doing so, revokes his or her appointment under the directive.

12(2)A health care professional may revoke the appointment of a proxy if the proxy unreasonably delays a decision and that delay negatively affects or may negatively affect the health of the maker, in the opinion of the health care professional.

12(3)On application, The Court of Queen’s Bench of New Brunswick may suspend or revoke the appointment of a proxy and rescind a decision made by a proxy if the proxy is found to be acting in bad faith or in contravention of this Act.

12(4)Unless a health care directive expressly provides otherwise, the appointment of a proxy is revoked if

(a) after a health care directive has been made in which the maker’s spouse is appointed as a proxy, the maker’s marriage is terminated by divorce or is found to be void or declared a nullity by a court in a proceeding to which the maker is a party or if the maker and his or her spouse separate, and

(b) the proxy is prohibited by court order or separation agreement from access to the maker.

12(5)If the appointment of a proxy is revoked, the next appointed proxy, if any, shall act under the health care directive.

12(6)A health care professional shall document the revocation of the appointment of a proxy and the substitution of the next appointed proxy.

12(7)Subject to subsection (5), The Court of Queen’s Bench of New Brunswick may substitute a decision of its own for a decision made by a proxy.

Multiple health care directives or documents

13If a person makes more than one health care directive or makes a health care directive or directives and a power of attorney for personal care under the Infirm Persons Act and there is a conflict between provisions in one or more of the documents, the provision in the most recent document prevails.

Order of the Court

14(1)If The Court of Queen’s Bench of New Brunswick appoints a committee of the person for a maker under the Infirm Persons Act, the authority conferred on a proxy terminates.

14(2)If The Court of Queen’s Bench of New Brunswick makes an order under paragraph 39(3)(a) of the Infirm Persons Act, the authority conferred on a proxy terminates or is superseded to the extent of the order.

Revocation of health care directive

15If a maker has the capacity to make decisions, a health care directive may be revoked

(a) by a more recent writing declaring an intention to revoke the directive and made in accordance with section 6, or

(b) by the destruction, with the intent to revoke, of all original signed copies of the directive, either by the maker or by some other person at the direction and in the presence of the maker.

Offences and penalties

16(1)A person who, without the maker’s consent, wilfully conceals, cancels, obliterates, damages, alters, falsifies or forges a health care directive or a revocation of a health care directive commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category H offence.

16(2)A person who wilfully misrepresents himself or herself in relation to a health care directive or in relation to the wishes of the maker commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category H offence.

16(3)A person who coerces or exerts undue influence on another person to make or revoke a health care directive or who requires another person to make a health care directive as a condition of providing a good or service commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category H offence.

16(4)A person who collects or receives, directly or indirectly, a fee or compensation to act as a proxy that is not expressly provided for in the health care directive commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category H offence.

Immunity

17(1)No action lies against a proxy

(a) by reason only that the proxy has acted in good faith in accordance with the provisions of this Act; or

(b) for failing to make a decision on behalf of the maker.

17(2)No action lies against a health care professional by reason only that he or she

(a) has acted in good faith in accordance with a decision expressed in a health care directive or in accordance with a decision made by a proxy, or

(b) has acted contrary to a decision expressed in a health care directive if he or she did not know of the existence of the directive or its contents.

2016, c.46 - Advance Health Care Directives Act

Copy to Clipboard