At LegalWills.ca we offer a complete set of estate planning services which include the Last Will and Testament, the financial Power of Attorney, and what we have been calling the “Living Will”. Our Living Will service typically includes a Healthcare Power of Attorney, that allows you to appoint a person to make medical decisions on your behalf (a Healthcare Proxy). And also a Healthcare Directive that allows you to express the type of healthcare you wish to receive if you were ever unable to speak for yourself. We collectively call all of these documents your “Advance Directives”.
We received an email from Pashta MaryMoon the Director of CINDEA – Canadian Integrative Network for Death Education and Alternatives. She expressed concern that we were using the term “Living Will” when it is not a widely used term in Canada and has been borrowed from the US.
After discussions we felt that it would be a great opportunity for Pashta to share with our community the correct use of terminology for Advance Care. The rest of this article is a guest post from Pashta MaryMoon from CINDEA.
Advance Care Planning terminology — clarifying the confusion
As Advance Care Planning (ACP) develops in Canada, there is a lot of confusion about terminology. Provinces and territories use different terms for the same documents/ agreements, or use the same term to refer to different documents/ agreements.
Some ACP documents (such as Advance Directives and Representation Agreements) are referred to as being ‘either-or’ — implying that the adult must choose one or the other — when in fact, they are complementary. Alternatively, some sources indicate that the pair can be combined — when, in fact, they are separate legal documents. Other documents have the same name, but are significantly different depending on the qualifier (such as a ‘Section 7’ or ‘Section 9’ Representation Agreement in BC).
In this article, I will focus on the Advance Care Planning terminology and documentation for British Columbia. But I encourage everyone to be very careful to explore the above terminology problems for their own province/territory’s ACP documents. More details on documents for all provinces and territories can be found at CINDEA.
Advance Care Planning [ACP]
This refers to the whole process of planning ahead for the possibility that there will come a time when you can no longer speak for yourself (e.g. coma), and/or are not able to give ‘informed consent’ (e.g. dementia) at the time when a decision needs to be made and acted upon. The focus is on medical and personal-care decisions — Advance Directives, Representation Agreements, and a variety of ways of expressing one’s personal-care wishes — but also includes Power of Attorney agreements. [Note: wills and estate issues are rarely included, but could generally be considered part of ACP.]
Living Will
The term “Living Will” is terminology used primarily in the U.S., though adopted loosely in Canada — most often vaguely referring to some or all components of Advance Care Planning. The term has no legal standing at all in Canadian legislation — although Nunavut does use this term for health directives (Advance Directives).
It is sometimes used as a term specifically for ‘personal-care wishes’, as distinct from medical directives. The use of the term ‘Will’ here at all is confusing — as most people associate it with estate (legal, financial, property) issues, which is not at all what a ‘living Will’ refers to.
Advance Directives (also called ‘Personal Directive’ and ‘Health Care Directive’) [AD]
An Advance Directive is a legal document specifically listing medical directives, which constitutes ‘informed consent’ — given in advance of potential medical situations and for specified treatment options. Advance Directives must be made when the adult is mentally capable. Or rather, legally capable (a designation that allows for a bit more latitude).
It only comes into effect if/when the person is no longer capable of giving informed consent for medical treatment at the time (whether temporarily or permanently). Although these decisions are often loosely referred to as our ‘wishes’, they are legally binding decisions/directives — which, if known/available, must be advocated for by one’s TSDM (see below) or Representative, and (if at all possible) implemented by medical staff.
Although one’s otherwise stated wishes — given in verbal, audio/video, or written form — should be respected, they do not have the legal power of Advance Directives once properly signed and witnessed (in BC, no lawyer is required). [Note: many residential facilities require that their residents have a ‘life directive’ or equivalent, which is essentially mini-Advance Directives — usually with 4 simple options ranging from ‘do everything possible’, through limited options for care, to ‘comfort measures only’.]
Advance Directives templates may include a list of specific options to choose from, for treatment in each major potential medical situation; or an outline of the adult’s values that would guide the decisions to be made at the time of medical need. Some Advance Directives include both, but only offer yes/no choices on 5-6 very basic medical conditions (such as ‘feeding tubes’ — with no clarification of the different kinds). Since modern-day medical options can be quite complex, such simple directives often do not clarify, to the medical staff, what the adult’s choice would be in that specific situation.
In my opinion, the best templates are those that include the combination of A) a comprehensive list of medical conditions, and the most likely treatment options to choose from; and B) not only a general values statement, but room to qualify and/or personalize each treatment directive.
Difficulties with medical treatment may still arise from unforeseen circumstances that could not be covered by directives in the Advance Directives, which is why a Representative Agreement is a very valuable complementary document (see below). [Note: a DNR (‘do not resuscitate’) or ‘no CPR’ order is often confused — even by medical staff — with Advance Directives.
Advance Directives may or may not include a DNR/’no CPR’ order — depending on the choice of the adult.]
While Advance Directives are occasionally (and confusingly) referred to as a ‘personal care directive’, the general definitions of ‘medical directives’ and ‘personal care decisions’ are quite distinct; and Advance Directives only cover specifically medical treatment issues.
Temporary Substitute Decision-Maker [TSDM]
This is the person who will make medical decisions for the adult when they are no longer able to — the ‘default’ decision-maker, only needed if there are no Advance Directives and/or Representation Agreement. Each province/territory has an ordered list of who these decisions will fall to — usually starting with spouse, and sometimes now extending to close friends as a last resort.
There is also a set of requirements beyond the order — such as ‘had contact with the person within the last year’; ‘not known to be estranged, or have significant value/lifestyles differences, from the person’; etc. However, such requirements are very difficult for the medical system to establish — especially in emergency situations; and without Advance Directives or an otherwise recorded statement of directives, there is no way of ensuring that the TSDM is following the wishes/intention of the adult.
Representation Agreement (also called Health Proxy/Agent, or Health Power of Attorney) [RA]
A Representation Agreement is a legal document naming a specific person (or set of persons — joint or alternate) who will make any necessary medical and personal care decisions for the adult, and who is designated by the adult in advance. In BC, a ‘section 7’ RA can include some basic financial/legal (i.e. PoA) responsibilities, but CANNOT make ‘withhold or withdraw life support’ decisions: a ‘section 9’ RA does not include any financial/legal responsibilities, but CAN make ‘withhold or withdraw life support’ decisions.
A Representative is legally bound to follow the choices of the adult, if known: of course, Advance Directives establish a clear set of medical directives for the Representative to follow. The responsibility for ‘personal care’ ranges from ensuring sufficient supplies for hygiene needs, to housing (home, residential facility, etc.) — although sometimes (as mentioned above), what is called ‘personal care’ improperly refers to medical directives.
There are several advantages to having an RA. First of all, the person(s) named is the person that the adult most trusts to follow their medical directives and personal-care wishes — which may be someone who is less emotionally biased than family members. Secondly, it relieves both the medical staff and the family from figuring out who, on the TSDM list, best fits the requirements; and helps avoid arguments amongst family and friends over who should be making such decisions. Thirdly, it gives the Representative clear legal authority to speak on behalf of the adult, and ensure that their directives are followed.
Some advice will indicate that you should choose Advance Directives or a Representation Agreement: this is a false dichotomy. One’s values and choices are best assured if there are comprehensive Advance Directives and an RA. In this case, the Representative is responsible for ensuring that the Advance Directives are both available to, and followed by, medical staff; and for making any unforeseen decisions about treatment that may arise — in accordance with the adult’s values, and consistent with their directives in the Advance Directives. Other advice may encourage one to write Advance Directives and RA into one single document. In BC, they are distinctly two separate documents, although some provinces do allow for them to be combined.
Power of Attorney [PoA]
A Power of Attorney, usually only deals with financial and legal affairs. The most common form is an ‘Enduring Power of Attorney’ — which can be used while the adult is still mentally (but perhaps not physically) capable, but ‘endures’/continues when they become no longer legally capable to make decisions for themselves.
As with Advance Directives, the adult does not lose control, or power of consent, until they are legally non-capable; and usually there are different requirements of ‘capability’ for different issues of consent. As noted above, several provinces have two kinds of PoA — one for legal/financial affairs and one for medical directives and personal care (equivalent to a Representation Agreement); although in New Brunswick, the two kinds of PoA can be combined.
Pashta MaryMoon — executive director of CINDEA (Canadian Integrative Network for Death Education and Alternatives, www.cindea.ca). CINDEA is a Canadian-based organization, which respects the wisdom of ancient death traditions and encourages the renewal of older death practices that are appropriate to our modern-day life. CINDEA ‘s perspective is one of a wide range of initiatives that are drawing our culture into a deeper relationship with nature and the cycles of life and death — the modern version of “a good death” for all involved in it.
Tim Hewson is one of the founders of LegalWills.ca.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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