It’s been more than a year since the Supreme Court of Canada, in Carter v. Canada, struck down the prohibition on physician-assisted death. In February, the Supreme Court granted the new Liberal government a four-month extension to come up with new legislation on what, for some, will be the decision of a lifetime.
Some Canadians, though, aren’t content to wait. The last six months or so, says estate planning lawyer Mary-Alice Thompson, a partner at Cunningham Swan Lawyers in Kingston, Ont., have seen a definite uptick in clients requesting added provisions authorizing medically assisted dying to their powers of attorney for personal care (POAPC).
Interestingly, notes Thompson, these clients tend to be on the younger end of the spectrum — often in their early 50s. For the most part, they’re healthy, but they want make sure that in the event that they’re diagnosed with a grievous medical condition that causes enduring suffering that is intolerable (the criteria outlined in Carter), they’ll be able to choose to end their lives with the help of a doctor.
“I’ve seen [requests for the option to have a doctor-assisted death] with a range of clients who have recently cared for loved ones who suffered long and difficult deaths in a way that they themselves would not want to die,” adds Thompson’s associate, Angela Fallow.
One problem, says Thompson, is that without legislation to guide the process, any such provisions aren’t particularly likely to be effective.
Further, notes Jan Goddard, a specialist in elder law at the Toronto firm of Goddard Gamage Stephens, the special joint committee on physician-assisted dying has recommended that people be allowed to choose medical assistance in dying only after they’ve been diagnosed with a grievous or irremediable condition, making advance planning difficult.
What can estate planning lawyers do for clients who are particularly insistent? The best solution, say both Thompson and Goddard, is to write up a clause in a POAPC document that reflects their wishes regarding medically assisted death to the extent that provincial and federal laws may allow for it, and to make the client aware of the limitations of such a clause. As legislation continues to shift, it will be important to meet regularly and update documents to reflect changes.
The Carter decision, though, provides advisors with an important opportunity to educate clients and help them create stronger and more effective powers of attorney and estate plans.
For example, says Thompson, clients often don’t understand clearly the role or limitations of a POAPC. “I do spend time explaining that we don’t have binding advanced directives in Ontario, and how we have a substitute decision-maker regime,” she says. Clients don’t always understand that POAs don’t kick in until they are unable to make decisions for themselves. And they’re often not aware that the preferences or guidelines stated in a POAPC aren’t binding if there is a later, capable wish.
“People tend to think that they are somehow locked into these written, signed formal documents,” she says, which is one reason she discourages including too much detail in a POAPC. It’s much more important, she says, to encourage clients to think long and hard about their choice of a substitute decision-maker, and to have ongoing conversations with that person.
Similarly, many people don’t understand the distinction between a do-not-resuscitate order and an advanced directive, or between medically hastened death and refusing treatment that may prolong life. Clients need to know that while they can’t currently authorize a substitute decision-maker to choose doctor-assisted death for them, they can ask that attorney to refuse life support, medications, feeding tubes and other interventions on their behalf.
For Goddard, national discussions about assisted death may be missing the point, especially given that the Supreme Court decision ultimately affects only a very narrow segment of the population. “We need to focus our clients on how they want to live instead of how they want to die,” she says. “What are their values? People come in and talk about how they ‘want to pull the plug’ [if they’re diagnosed with a terminal condition]. But you could live with a gradual progressive illness that affects your mind or body for years and years. And I think we should be trying to help our clients think about how they want to live if that’s what happens to them.”
Goddard urges clients to think about the details: Do you want to remain in your own home? Who do you want to take care of you? Should that person be compensated? Do you want your hair done every week and your makeup put on for you every day? How do you want to be clothed? Do you want to go on holidays? Do you want to make sure you have companions who visit and friends who accompany you on outings? Is it more important to you to leave money for your kids or to live at home as long as possible? What are your views on palliative care? What would your ideal death look like?
These kinds of details, she says, inform the bigger picture of what a POAPC, as well as a client’s financial plan, might include.
All three lawyers see access to an informed, physician-assisted death as a positive addition to Canadians’ human rights. In the end, says Thompson, the intention of the Supreme Court decision is to give people more control over their own lives. “Our job is to give people the guidance they need to make those decisions.”