medical-chart

Mitch Childs knows clients are reluctant about drafting wills.

And even more are squeamish when it comes to preparing the documents commonly called living wills, but now referred to as continuing power of attorney for personal care.

To encourage clients to discuss what might happen if they lose mental capacity or the ability to direct their own care, Childs, who holds an elder planning designation and works with Freedom 55 Financial in Owen Sound, Ont., recounts some sad stories. In one case, an elderly woman had lost the ability to look after herself and was living in a nursing home.

While she had given her husband authority over her financial affairs through a conventional PoA, she hadn’t designated anyone to take charge of her personal care. When the husband died unexpectedly following a heart attack, the wife and her children were left in limbo. The kids didn’t have legal authority to instruct the nursing home on how to look after their mother, nor were they able to access her savings to pay the bills.

“For almost two years, the kids had to pay out of their own pockets,” says Childs. “They went to a lawyer, but it took two years to get a management plan before the courts to get them named as trustees.”

Conflicts over personal care can get uglier. The Supreme Court of Canada recently adjudicated a battle between the family of a man in a vegetative state due to a car accident, and physicians at the Sunnybrook Health Centre in Toronto.

The doctors planned to discontinue life support, but the man’s family, who were devout Muslims, insisted he had minimal consciousness, and went to court to fight that decision.

The man hadn’t left instructions on what should be done if he was incapacitated, and late last year the Court sided with the family in a ruling that will apply in Ontario going forward.

Mythbuster

“Heroic measures” has a legal meaning.

Not true. The term could be interpreted differently by different medical professionals.

Legal language

If the people in both cases had prepared a PoA for personal care while still capable, the disputes could’ve been avoided. However, a PoA doesn’t always resolve the legal crises that may arise when someone becomes incapacitated.

To address that legal black hole, many provinces have passed legislation that recognizes PoAs for personal care (also known as directives or representation agreements). They have supplanted the traditional, but legally informal, living wills.

However, in addition to preparing PoA directives, it’s important to make your wishes known to your attorney and healthcare providers. Many people do this by including living will clauses, whereby the client can instruct physicians and family members to discontinue life-sustaining procedures or take all possible measures to sustain life, says Elaine Blades, director of fiduciary services at Scotia Private Client Group in Toronto.

“The value of including these wishes in a personal care power of attorney is that where the grantor of the power has made his or her wishes known, the attorney is required to provide instructions in accordance with these wishes,” she explains.

Still, estate-planning experts suggest advisors must tread carefully when getting clients to create these directives. Ask questions such as:

  • Who is best positioned to step in as the attorney?
  • How do families and advisors ensure that medical practitioners have access to those directives?
  • What are the precise meanings of key phrases such as “heroic measures,” which frequently come up in discussions about end-of-life care?

For instance, many people often say they don’t want to be subject to highly intrusive efforts to keep them alive in desperate circumstances (e.g., the use of feeding tubes, artificial ventilators and other medical interventions). Most don’t want to live their final days in a state of unrelieved pain or indignity. But capturing those broad desires in legal language requires precision, as well as the participation of family members, medical practitioners and designated attorneys.

“There have been some cases about what it means to take heroic measures or what ‘suffering’ means,” observes Toronto estate litigator Eric Hoffstein, a partner with Minden Gross LLP. Such phrases, he adds, are often used in form documents or power-of-attorney kits, but have no legal meaning.

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