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.
“Heroic measures” has a legal meaning.
Not true. The term could be interpreted differently by different medical professionals.
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.
But some tribunals have still upheld personal care directives with such language.
Take a 2012 ruling by Ontario’s Consent and Capacity Board. An elderly woman who had Alzheimer’s was put on a feeding tube after she suffered a heart attack while choking on food. She’d instructed that she “be allowed to die and not be kept alive by artificial or heroic measures.” Her children and their rabbi argued their religious beliefs did not allow her physicians to disconnect life support.
But the Board upheld her decade-old directive.
In Quebec, courts play a direct role in adjudicating and signing off on directives. Dan Derhy, a Montreal-based notary and lawyer at Derhy Trusts and Estates, says the law requires medical directives, as well as incapacity mandates, be vetted by a provincial court.
This process is similar to probating a will in common law, where the judge must be convinced of the incapacity and the necessity to homologate the mandate. The process can take up to six months. “In practice, the doctor has the last word on medical directives.”
That kind of judicial oversight doesn’t exist in other provinces, which means it falls to the client, his health care providers and his family members to provide direction to medical professionals. Childs notes documents have evolved and are more detailed, laying out what the person wants to occur in different medical circumstances. This typically involves stipulating whether clients want to be hooked up to life-support systems such as ventilation or feeding tubes. He urges clients to think carefully about those orders because certain medical situations and the broader health context may create ambiguous outcomes.
For instance, one couple told him they both wanted a DNR order in their directives should they suffer a heart attack. The wife had experienced years of ill health and multiple recurrences of cancer, so the DNR order made sense.
But the husband was in good health, so Childs reminded him that he’d likely recover in the event of a moderate attack, and would be able to enjoy many years with his grandchildren. The man took his advice.
Make clients’ words count
Experts urge clients to choose attorneys who will carry out instructions without compromising their own beliefs. For instance, Hoffstein’s seen cases where children don’t share their parent’s religious views, so the client may have to select a third-party attorney.
Hoffstein’s approach is to avoid legally imprecise descriptions of a person’s state (see “Legally imprecise terms”). Rather, he says, the directive can rule out specific types of medical interventions. And it can also state someone doesn’t want to undergo life-prolonging procedures unless they result in certain quality-of-life thresholds, such as the ability to take food orally, or engage socially with others.
But, he adds, “I don’t think there’s any perfect language.”
Christine Van Cauwen-berghe, assistant vice president of tax and estate planning for Investors Group in Winnipeg, agrees. She advises clients to have their family physicians review the documents and provide input on whether the instructions make sense medically.
“You don’t want to have a situation where you lose capacity and go to the hospital, but the hospital says they don’t know what [the directive] means.”
Also, add language that describes how family members and caregivers determine whether a person no longer has the mental capacity to make his own choices. In cases where he has a stroke, the answer will be obvious. But in others, such as a long-term degenerative illness, that threshold is less clear.
To remove the possibility that adult children or other family members will squabble over whether an aging parent has lost capacity, the care directive can state the PoA only comes into effect if there’s been a third-party assessment by the family doctor or certified capacity assessor.
And when talking to clients, advises Hoffstein, record what’s asked, as well as the client’s statements, even if he’s not concerned about the matter. He again cites the issue of religious beliefs. If the client has spiritual issues about blood transfusions (a problem for Jehovah’s Witnesses) or physician decisions to stop life-sustaining treatment, those details must be written down.
“Ideally, the advisor will have the client review the notes and sign off on them,” says Hoffstein. “They may be the only record of what was discussed.”
Legally imprecise terms
The key to a well-drafted PoA care directive, says Eric Hoffstein, is to ensure that frequently used but legally undefined words—“suffering,” “heroic/extreme measures,” “treatment” and “artificial”—are used in a context that mitigates uncertainty.
Some additional explanation can ensure clarity. Hoffstein offers a pair of examples of uncertain language that led to litigation.
“I hereby instruct that if there is no reasonable expectation of my recovery from physical or mental disability, I be allowed to die and not be kept alive by artificial or heroic measures. I do, however, instruct that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life.”
(This is from the 2012 case involving an elderly patient at Baycrest Hospital whose children challenged her directive, arguing it violated their religious views. The document made no mention of religion.)
“If I am no longer able to make decisions for my own future, if I am no longer able to communicate, if I am unable to care for myself, if there is no reasonable expectation of my recovery from extreme physical or mental disability of incapacity, if circumstances exist that render me incapable of rational existence or if I am afflicted with (irreversible) injury, disease, illness or condition, then I want my attorney to respect my wishes listed below.”
(This is from a 2010 case in which the son of a Serbian immigrant sued his father’s lawyer over ambiguities arising from meetings to discuss a will and a care directive 15 years before the man suffered severe brain damage due to oxygen deprivation. The lawsuit ultimately failed.)
John Lorinc is a Toronto-based financial writer.