Substitute Decision Maker Nova Scotia

You are unconscious in a Nova Scotia emergency room. A treatment decision needs to be made right now. Who has the legal authority to make it?

The answer depends on whether you signed a Personal Directive and what it says. If it names a delegate, that delegate decides within the directive's authority. If no applicable Personal Directive exists, a statutory hierarchy that you never chose determines who speaks for you — and the result may not be what you would have wanted.

The Statutory Hierarchy

When a patient in Nova Scotia lacks capacity and has no Personal Directive, Section 14 of the Personal Directives Act sets the order in which clinicians look for a substitute decision-maker:

1. Spouse (including a common-law partner who has lived with the patient for at least one year)
2. Adult child
3. Parent
4. Person standing in the place of a parent
5. Adult sibling
6. Grandparent
7. Adult grandchild
8. Adult aunt or uncle
9. Adult niece or nephew
10. Other relative
11. Public Trustee (decision-maker of last resort)

The person chosen must have had personal contact with the patient within the preceding 12 months and be willing to act. A statutory decision-maker must follow the patient's known wishes; if those wishes are unknown, they must decide in the patient's best interests.

Why the Default List Creates Problems

The hierarchy works well for a married couple with adult children who all agree. It breaks down in three common situations:

Common-law partners. Nova Scotia recognizes common-law partners in the statutory hierarchy, but they must have cohabited for at least one year. A partner of 11 months has no standing, regardless of the depth of the relationship. And if the relationship is disputed by biological family members — which happens more than anyone expects — the partner may face challenges with no quick resolution.

Blended families. Adult stepchildren are not a separate category in the statutory hierarchy. If you have been raising your partner's children for 20 years but never formally adopted them, do not assume they have the same priority as an adult child; a listed relative, such as your biological sibling, may rank ahead of them.

Estranged family. The requirement for personal contact within the preceding 12 months exists to filter out relatives who have no meaningful relationship with the patient. But "personal contact" is loosely defined, and a holiday phone call could technically satisfy the threshold. An estranged adult child who called once in December may have standing over a close friend who visits weekly.

What a Delegate Does

When you sign a Personal Directive that appoints a "delegate," that delegate is the person authorized to make healthcare and personal care decisions on your behalf. The delegate's authority activates when a capacity assessor determines you cannot make a specific decision.

Your delegate must follow the instructions you wrote in your Personal Directive. If your directive does not address the specific situation, the delegate must make a decision based on what they believe you would have wanted, considering your known values, beliefs, and wishes.

A delegate cannot consent to Medical Assistance in Dying (MAiD) on your behalf. Federal law requires that the patient have full capacity at the time of the final request.

How to Choose a Delegate

The right delegate is someone who will advocate for your actual wishes, even when other family members disagree. Consider:

Willingness. Being a delegate means potentially telling a surgeon "no" while family members cry in the waiting room. Not everyone is equipped for that. Ask directly.

Proximity. Your delegate needs to be reachable quickly. If they live in British Columbia and you are hospitalized in Halifax, communication delays could force the care team to proceed without them.

Understanding. Your delegate needs to know what you want — not in general terms, but in specific scenarios. Do you want CPR if you have advanced dementia? Would you accept a feeding tube if you were in a persistent vegetative state? These conversations are uncomfortable but essential.

Alternate delegates. You should name at least one alternate in case your primary delegate is unable or unwilling to act when the time comes. Joint delegates (two people sharing authority on the same decision) are prohibited under Nova Scotia law and will invalidate that section of your directive.

Paid Healthcare Providers as Delegates

A paid healthcare provider — your doctor, a home care worker, a nursing home attendant — generally cannot serve as your delegate unless they are also your spouse or close relative, or you explicitly authorize a paid provider in your directive. This rule prevents conflicts of interest where the person making care decisions also benefits financially from those decisions.

The Nova Scotia Advance Directive & Living Will Kit includes a delegate selection worksheet that walks you through eligibility rules, alternate planning, and conversation scripts for discussing the role with your chosen delegate.

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