Clients often overlook advance care planning during the estate planning process. Too often, they only prepare a basic power of attorney for personal care, which is generally not enough.
With people living longer, clients will need to pay greater attention to advance care planning in the coming years, resulting in more comprehensive personal care plans. A major component of these personal care plans will include a client’s detailed wishes regarding a variety of personal and health care matters, as opposed to only end-of-life matters. Another element may be planning for an assisted death, depending on the federal government’s response to the Supreme Court of Canada’s recent decision in Carter v. Canada.
Under Ontario’s Substitute Decisions Act and Health Care Consent Act, substitute decision makers (SDMs), such as attorneys for personal care, are required to follow wishes that the incapable person expressed while capable. Wishes can be expressed in a power of attorney for personal care or in a separate letter, often referred to as a “letter of wishes” or a “living will.” Wishes can also be expressed orally, which can create issues if there is a possibility that family members may challenge the SDM’s decisions.
SDMs do not have to follow wishes that are not applicable to the circumstances. Vague and unclear wishes are commonly treated as not applicable. For example, wishes expressing general sentiments in contemplation of an uncertain future are often inapplicable. As well, changes in condition, prognosis, and treatment options can result in prior wishes being characterized as not applicable to the circumstances.
In contrast, a person’s wishes tend to be applicable if they arise out of deeply held beliefs, particularly religious ones. These wishes are usually concrete and precise. Wishes dealing with an incapable person’s specific medical circumstances, including likely future illnesses and conditions, are usually applicable in the circumstances, especially where the person is aided by a health care practitioner in formulating his or her wishes.
More people are disputing the applicability of wishes, and this trend is likely to continue. Most disputes centre on vague and general wishes. For example, in LR (Re), an incapable person expressed the wish that she never wanted to be put in a nursing home. The Consent and Capacity Board (CCB) held that the incapable person never envisioned when she made the wish that she would one day be totally reliant on others for her every need. As such, the CCB held that the wish was not applicable in the circumstances.
The above outcome may have been avoided if the incapable person had expressed detailed wishes that took into account various contingencies. At the same time, clients should be cautioned against expressing wishes that are impractical or overly rigid.
In Carter v. Canada, the Court struck down the provisions that make it a criminal offence for a physician to assist in the dying of a competent adult patient, subject to certain conditions. Since the Court confined its ruling to situations where the patient is competent, it seems unlikely that it will be possible to formulate an advance care plan dealing with assisted dying. It is possible, though, to express wishes regarding other end-of-life matters, such as the removal of life support.
Advance care planning is an important component of the estate planning process. While some clients are content to leave such decisions to their SDMs, more clients are expressing a desire to set out detailed wishes dealing with a wide variety of health and personal care matters, such as housing, nutrition and clothing. By doing so, these clients are increasing the likelihood that their wishes will be carried out when they are no longer capable of making such decisions on their own.