Rita*, 88, was recently diagnosed with Alzheimer’s. Her husband died three years ago and, since then, she’s been living on her own in a large Winnipeg bungalow. Following the diagnosis, Rita let her two children — Ross, a software developer in Vancouver, and Patricia, a teacher in Bangkok — know that she wants a medically assisted death when the time comes.
Rita updated her will, powers of attorney and her health-care directive when her husband died. She added a “do-not-resuscitate” clause in her directive for her proxy (Manitoba’s equivalent of an attorney for personal care), but no explicit wishes about medically assisted dying. Now, Ross is alarmed by Rita’s request. He’s worried that his mother is no longer mentally capable of making such a decision. When he raises his concerns with Patricia, however, she is adamant that they should follow their mother’s wishes.
Ross and Patricia haven’t always gotten along. Ross has a thriving business and stable family life. Patricia, after struggling with drug abuse, has settled down and been with the same international school for two years. However, she’s carrying significant debt and her family still worries she’s one bad outcome from disaster.
Ross interprets Patricia’s willingness to accept Rita’s MAID request as greed: he thinks his sister doesn’t want to risk losing her inheritance to years of long-term care. Though he doesn’t admit it, he also isn’t convinced Patricia is responsible enough to receive an inheritance all at once. Rita’s estate — valued at $6 million including her home — is to be split evenly between her two children.
*This is a hypothetical client. Any resemblance to real people is coincidental.
Laura Tamblyn Watts
Founder and CEO,
Financial advisor, Macdonald, Shymko and Company Ltd., Vancouver
Vice-president and team lead, tax, retirement and estate planning, CI Global Asset Management, Toronto
An Advisor's Role
Laura Tamblyn Watts (LTW): It’s important to determine whether Rita is still able to make the decision about medical assistance in dying (MAID). Does she have the capacity? Meet with her alone so you can evaluate whether Rita understands the information you’re giving and appreciates the consequences. Can she explain the what ifs, and the impact it will have on her finances? Short-term memory loss can be an issue you need to pay attention to. If you and Rita have the same conversation several times, and she gives you the same decision, that’s a good sign she still has capacity.
Ngoc Day (ND): It’s Rita’s money and, [assuming she’s capable, it’s] her decision on what she wants with her life. It sounds like the Alzheimer’s diagnosis came as a shock to the entire family. The best thing they can do is calm down and have a family discussion, unpack the emotion behind the decision and go through some of the what ifs. An in-person meeting is much more conducive to a heart-to-heart conversation. Maybe Rita is choosing MAID because she doesn’t think she has the financial ability to pay for care. Maybe she has this picture of being incapable and doesn’t want to go down that path. Maybe she doesn’t want to be a burden to her children. Having that discussion in person will help the kids understand Rita’s choices better. Rita should offer to foot the bill to get her daughter and son in the same room with her. If they achieve family harmony, a better understanding and cooperation out of this meeting, it would be worth the cost, time and effort.
LTW: An advisor cannot suggest MAID as an option. You could get cited for doing that. Instead, if you have somebody who’s expressing values, wishes and beliefs that have something to do with their end of life, support them in getting the appropriate help through social workers, physicians or health-care providers. In this case, since she’s requesting MAID, it’s a required step and not just a nice-to-have. It’s also important for advisors to be connected with the broader community in terms of resources. My referral would be to the Alzheimer’s Society in her jurisdiction, which can help address many of the concerns the family is having.
ND: It’s not our role to recommend MAID in any way, but we can help the client do a review of what’s happening right now. For example, we haven’t talked about her RRIF or TFSA. Who are her beneficiaries? We need to review that.
LTW: You should learn about advanced care choices, such as the difference between MAID and refusing life-sustaining treatments. Those are different things. MAID is a proactive step, where you’re taking medications that will end your life. Dementia is one of the areas where MAID is allowed. Advisors should keep up to date on options but should not dispense medical advice or information.
The process requires Rita to be mentally capable of making her own decisions throughout, up to and including the final assessment. If Rita is at risk of losing capacity prior to the date that MAID would be administered, she can submit a waiver of final consent, which means she would no longer have to give express consent when the date arrives. If Rita loses decision-making capacity, she could still demonstrate refusal or resistance to the administration of MAID by words, sounds or gestures, invalidating the agreement to waive final consent. Once a date to receive MAID is set, Rita can still change it if she’s deemed capable of providing consent.
Rita has been very clear she doesn’t want life-sustaining treatments via a do-not-resuscitate clause. So that can mean things like no food, or it could mean withholding life-sustaining treatment, like CPR. You could recommend Rita talks to her doctor, nurse or social worker about what she would experience in this situation.
Keith Masterman (KM): Her health-care directive is a good example of [executing] a document without fully understanding it. I’m assuming both children are proxies. If that’s the case, she should have had conversations beforehand. Hopefully she still has the capacity [to think] about whether the two of them can act together, because it sounds like there have been a lot of warning bells that they won’t be able to work together.
LTW: There should be some practical conversations about how complicated being a proxy can be. Being several provinces or time zones away is not very practical; it’s best to be in the same province. It may be that neither of the kids is a good choice. There may be some advantages of having a trust company assist with the financial stuff, and seeing if there’s somebody closer in her jurisdiction to handle the health- and personal-care stuff.
KM: Then there’s the will. What worries me is Rita is very isolated. Ross, because he’s in Canada, will probably fly in to help his mom. He’s going to be the one who drives her to the lawyer or advisor. He’s already upset about her current plan because he doesn’t think his sister can handle money. So there’s an added layer of potential undue influence and that really concerns me. I think all professionals must be careful to properly document everything they do simply because of that additional layer in this case.
ND: Rita could provide Patricia’s inheritance in a testamentary trust, assuming she’s still healthy and has the capacity to do so. That’s set up in Rita’s will. The trust could state Patricia would not get her inheritance right away. It would state who the trustee is, and how that money is used so she doesn’t blow off her inheritance right away. For instance, the trust could state the inheritance is used to help Patricia with moving costs if she moves back to Canada when the overseas job finishes. Or it could help Patricia with a down payment for a house. Or if Patricia has kids in the future, the trust could pay for their education or extracurricular expenses. To avoid further conflict, Rita could also set one up for Ross.
Criteria for MAID
To be eligible for medical assistance in dying, you must meet all of the following criteria. You must:
- be eligible for health services funded by the federal government, or a province or territory (or during the applicable minimum period of residence or waiting period for eligibility)
- generally, visitors to Canada are not eligible for medical assistance in dying
- be at least 18 years old and mentally competent — that is, capable of making health-care decisions for yourself
- have a grievous and irremediable medical condition
- make a voluntary request for MAID that is not the result of outside pressure or influence
- give informed consent to receive MAID
Source: Government of Canada
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