The Living Will: where does it fit in your estate plan?

Everybody needs a Last Will and Testament, but does everybody need a Canadian Living Will? We are asked this question a lot, and the answer is not always clear. Everybody should prepare a Living Will, but not every Living Will is going to be used. Most people will never find themselves in a situation where they need a Living Will, but if you are ever in that situation, it is a vital document, but by then it is too late.

 

According to a 2014 Harris/Decima poll, although nearly all Canadians (96%) believe it is important to have a conversation with loved ones about their wishes for care, not many (34%) have actually had a discussion, and only 13% have completed an Advance Care Plan to communicate their wishes.

What is a Living Will?

Let us start by clarifying that technically, the term Living Will has no legal standing in Canada. It is really a US term that describes an “Advance care plan”. It’s a little frustrating because as important as the document is, the authorities and professional organizations in Canada have been unable to come up with a universal term that is understood by the public and accepted by institutions. This alone, is a contributory factor to why so many people don’t have a document in place.

At LegalWills.ca we persist with the term “Living Will” for our service, simply because this is the expression that people search for when they need this document. A quick look at Google keyword analysis shows that in Canada for every search on the term “Advance Directives” there are fifteen searches for the term “Living Will”.

Our Living Will service is made up of two components which together are regarded as your “advance directives”. Firstly, there is an “advance care plan” or a description of the kind of treatments that you would wish to receive if you were ever in a terminal irreversible vegetative state.

To accompany this advance care plan we include a Power of Attorney for Personal Care. This is your appointment of a Substitute Decision Maker, giving one person the authority to make treatment decisions on your behalf. Again, there is some confusing terminology here and this substitute decision maker can be referred to as any number of titles including a Medical Proxy, or Healthcare Representative or Agent.

So why would you need one of these documents? let us explore some of the examples that have appeared in the news recently.

The Living Will in the news

There have been at least two high profile legal battles this year in Canada related to the use, or lack of a Living Will. Perhaps the most well know was the terrible case of Hassan Rasouli in Toronto that went all the way to the Supreme Court of Canada. It is a difficult case to summarize in a paragraph, but essentially, the doctors felt that Mr Rasouli had lost so much cognitive capability (he was on a ventilator) and had no chance of recovery, that they wished to withhold feeding and hydration and allow the patient to die. However, the family wanted to keep My Rasouli alive. The ensuing court battle went on for years with the Supreme court deciding that doctors cannot unilaterally withdraw life support without the consent of the patient, their family members or a substitute decision maker.

Another contentious legal battle over a living Will came in British Columbia earlier this year, Margot Bentley had prepared an Advance Care Directive in which she stated

I direct that I be allowed to die and not be kept alive by artificial means or ‘heroic measures,’” …caregivers should dispense “no nourishment or liquids” if I am in a condition where it was clear there was no reasonable chance of recovery.

Several years after writing this directive, at 82 years of age, Ms Bentley suffered from advance dementia and Alzheimer’s. Sadly, and controversially, the courts over-ruled the advance directive and insisted that caregivers continue to provide nourishment in direct opposition to the family’s desires, and the clear written wishes of Ms Bentley. Again, it is difficult to summarize this case in a paragraph, but the ruling highlighted a grey area between health care and personal care, and because the feeding was by spoon rather than intravenously, the courts ruled that it should not be withdrawn.

Why can’t I just let my family decide?

If we put aside the Margot Bentley case for now, the purpose of appointing a single Healthcare Representative is to allow one person to speak on your behalf. We sometimes receive the question “can I appoint all of my children as joint healthcare representatives?” but this would make the document worthless. Many high profile battles like the situation involving Casey Kasem arose because the family couldn’t agree on what to do. The most famous US case involved a 15 year court battle over the treatment of Terri Schiavo between parents and spouses who simply couldn’t agree.

Appointing a single decision maker is the most important aspect of creating a Power of Attorney for Personal Care.

Provincial differences on Living Will laws

Every Province has its own law concerning Living Wills and Advance Directives. The Provincial laws include;

Ontario – The Substitute Decisions Act (1992)
British Columbia – Health Care (consent) and Care Facility (Admission) Act (2000)
Alberta – Personal Directive Act (1997)
Manitoba – Health Care Directives Act (1992)
New Brunswick – Infirm Persons Act (1973)
Newfoundland and Labrador – the Advance Health Care Directives Act (1995)
Saskatchewan – the Health Care Directives and Substitute Health Care Decision Makers Act (1997)
Nova Scotia – the Medical Consent Act (1989)

The difference between a Living Will and a Power of Attorney

As mentioned before, our Living Will service includes a document for appointing a Healthcare Power of Attorney, but this should not be confused with a Financial Power of Attorney. A Financial PoA allows you to appoint somebody to handle your financial affairs under certain circumstances (usually when you lose the capacity to handle your own finances). A person who has been granted powers under a financial Power of Attorney has no healthcare decision making powers, and vice versa; a healthcare proxy cannot make financial decisions on your behalf.

The two documents do complement each other as they both deal with a situation where you lose our own decision making capacity; one deals with healthcare, the other with finances. They also share the common attribute that they are immediately canceled at the moment you pass away.

How do I create a Living Will?

Creating a Living Will, Healthcare Power of Attorney, Advance Directive or Advance care plan (whatever you wish to call it) can be a very simple process and part of putting your entire estate plan together. At LegalWills.ca we allow you to create these documents together with your financial Power of Attorney and Last Will and Testament. As with these documents, you simply step through the question and answer service, at the end of which, you will receive a compiled document customized for your Provincial laws. The document is then signed in the presence of two witnesses to complete your estate plan.

There is no requirement to have the document notarized or signed by a lawyer to make it a legal Living Will. But, we would recommend that you talk to loved ones and family members about your decisions so that they can support your wishes should the situation ever arise.

Anonymous

Tim Hewson

President and CEO at Canadian Legal Wills
Tim Hewson is one of the founders of LegalWills.ca.

He has over 19 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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