Is an Advance Directive Legally Binding in New Brunswick?

The Legal Foundation: Yes, It Is Binding

A properly executed Health Care Directive under New Brunswick's Enduring Powers of Attorney Act is legally binding. Healthcare providers have a statutory obligation to follow the clinical instructions you have documented, provided the directive was executed while you had capacity and complies with the Act's requirements.

This is not a matter of clinical discretion. The legal foundation predates the current statute: Canadian common law established through landmark cases like Malette v. Shulman and Fleming v. Reid that a competent adult has an absolute right to refuse medical treatment — even treatment that would save their life. The Enduring Powers of Attorney Act codifies this principle and extends it to advance instructions: your documented refusal of treatment must be honoured even after you lose the ability to communicate.

The Act also protects clinicians who follow your directive in good faith. A physician who withholds CPR because your directive explicitly refuses resuscitation is shielded from liability — which removes the institutional incentive to default to full intervention "just in case."

When a Directive Might Not Be Followed

Saying a directive is legally binding does not mean it is automatically self-enforcing. There are situations where your documented wishes may not be carried out:

The directive is not accessible. If the hospital does not have your Health Care Directive on file and your family cannot produce it during an emergency, clinicians will follow default protocols — which typically means full intervention. This is not a refusal to honour your wishes; it is a failure of distribution. The directive sitting in a drawer at home does nothing for you in an ambulance.

The directive is ambiguous. A directive that says "no extraordinary measures" is clinically meaningless — every physician draws that line in a different place. A directive that says "I refuse cardiopulmonary resuscitation, mechanical ventilation, and artificial nutrition via feeding tube in any circumstance where two physicians agree that my condition is terminal or irreversible" gives clinicians clear instructions they can act on. Specificity protects enforceability.

The directive was not properly executed. A document that lacks the required signatures, was signed when the grantor lacked capacity, or was executed under the old Advance Health Care Directives Act without qualifying under the transition provisions may be challenged. Defective execution does not automatically void the document, but it creates grounds for a clinical team to seek legal guidance before acting — which means delay.

The directive conflicts with the law. You cannot use an advance directive to request Medical Assistance in Dying (MAiD) in Canada. Federal law requires the patient to make the MAiD request while they have capacity, and the assessment and administration process follows its own legislative pathway. A directive that requests MAiD is unenforceable on that specific instruction, though the rest of the document remains valid.

Can Your Family Override Your Directive?

No. A family member does not have the legal authority to override the instructions in a properly executed Health Care Directive. Your wishes, as documented, take precedence over a spouse's, child's, or sibling's preferences about your care.

However, the practical reality is more complicated. If your family is at the bedside insisting on a different course of treatment — demanding CPR when you have refused it, or refusing a palliative approach when you have requested one — the clinical team faces pressure. Some clinicians will follow the directive despite family objections. Others may pause to consult the hospital ethics committee or seek legal advice, which creates delay.

The strongest protection against family override is not just having a directive — it is having an Attorney for Personal Care who agrees with your wishes and is present to enforce them. When your appointed attorney is at the bedside saying "these are the patient's documented instructions, and I am authorized to direct care in accordance with them," the legal authority is clear and the clinical team can proceed with confidence.

This is another reason why the Health Care Directive alone is not enough. Without an appointed Attorney for Personal Care, there is no one with recognized legal standing to advocate for your wishes against family pressure.

What Your Attorney for Personal Care Can and Cannot Do

Your Attorney for Personal Care, appointed through the Enduring Power of Attorney for Personal Care, steps in when you lose capacity for the relevant personal-care matter. The EPA can name who makes that determination; if it does not, an assessor — normally a physician or nurse practitioner — does so.

Once activated, the attorney has a statutory duty to follow your documented wishes. They cannot substitute their own preferences for yours. If your directive says "no feeding tubes under any circumstances" and your attorney personally believes feeding tubes should be used, the directive governs — not the attorney's opinion.

The attorney's decision-making hierarchy:

1. Follow the documented instructions in the Health Care Directive
2. Where the directive is silent, make decisions consistent with your known values and beliefs
3. Where values provide no guidance, act in your best interest

An attorney who deliberately acts against the patient's documented wishes can be challenged through the courts, though this is rare in practice.

Making Your Directive Enforceable in Practice

Legal enforceability means nothing if the document never reaches the clinical team. The distribution plan is as important as the content:

• File a copy with your primary care physician and request that it be entered into the electronic medical record system (Horizon or Vitalité, depending on your health zone)
• Give a copy to your Attorney for Personal Care — they cannot enforce what they have not read
• Post a copy in your home in a location emergency medical personnel will check (refrigerator door, bedside table)
• Carry a wallet card behind your Medicare card noting that a directive exists and listing your attorney's contact information

The New Brunswick Advance Directive & Living Will Kit includes a distribution log and wallet card template alongside the directive templates themselves, so your documents are not just legally valid — they are accessible when they need to be.

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