Living wills

While some legal advice may be needed to draft a living will, much of the effort boils down to describing personal values in ordinary language. Sometimes clients just need to talk about personal matters with a trusted friend and advisor. That advisor may be you, particularly since the living will often goes hand in hand with a power of attorney over financial matters.

Here are some issues that may crop up if your client wants a living will.

n Legal effect:

Since living wills didn’t get much public attention before the 1980s, not all provinces have enacted legislation to deal with them. In Alberta and Ontario, the legislation allows someone to appoint a representative to make decisions about medical care and other personal matters such as housing and nutrition. The appointment can include instructions that bind the representative in making the decisions.

Quebec’s Civil Code provides for the appointment of a representative, called a mandatary, to ensure a person’s protection if that person becomes incapacitated. However, the code does not allow the person to leave instructions to guide the mandatary in making the decisions.

In Saskatchewan, Manitoba, Nova Scotia, Newfoundland and Prince Edward Island, the legislation provides for the appointment of a representative to make decisions respecting medical care only. British Columbia and New Brunswick have no legislation that gives legal force to living wills.

Even though living wills are not legally binding in every province, they are being used across the country because they are so helpful. They give comfort and guidance to the doctors, hospitals and family members who must make difficult medical decisions about incapacitated patients.

n Scope of the will:

Living wills have many names and come in many forms. According to various provincial statutes, they are called personal directives, representation agreements or powers of attorney for personal care. They can vary in form from a simple nomination of a substitute decision-maker to a nomination accompanied by an elaborate set of instructions.

The kind of directive your client wants or needs is often determined by his or her circumstances. If she can choose a representative who is utterly trustworthy and who knows her intimately, she can probably opt for the simplest directive. But if she doesn’t have someone like that in her life, she will have to give her representative some guidelines.

Toronto estates lawyer Mary MacGregor says the simplest kind of directive is often used between spouses who are about the same age and have been married a long time. When an adult child is appointed as the representative, he will often need some written instructions to guide him in his decisions and make him feel he is making the right choice for the parent.

For example, many people leave instructions about end-of-life treatment and prohibit the use of mechanical life supports. When no close family member can act as the representative, detailed instructions are often appropriate.

Moreover, detailed directives are sometimes prepared by clients who are suffering from a certain affliction, says Vancouver estates lawyer Deirdre Herbert. They know what’s going to happen to them and they have definite opinions about how their care should proceed.

n Drafting the directive:

Preparing specific instructions in a directive isn’t as easy as your client might think. “It’s like trying to catch smoke in a suitcase,” says Jane Carstairs of the Calgary law firm McKinnon Carstairs. For example, living wills often say that no “heroic measures” are to be taken if the client is suffering from a terminal illness, but everyone may have a different vision of what amounts to heroic measures.

If a client wants a very detailed directive, Carstairs suggests she talk to her doctor about the types of medical decisions that may have to be made so the client will know what instructions would be useful in a medical context.

When preparing a detailed directive, focus on a clear statement of values and beliefs,writes Alberta lawyer Tom Carter in his booklet called Your Personal Directive: More than a living will. This statement is the heart of a good directive and will help the representative cope with any unforeseen situations.

In drafting this statement of beliefs, don’t think in terms of specific illnesses, says Dr. William Molloy in his booklet on living wills entitled Let Me Decide.

Instead, describe conditions in terms of everyday living. For example, a client may wish to receive only palliative care if she was unable to communicate or feed herself.

Don’t necessarily limit the directive to end-of-life medical treatment, but also consider addressing other personal care matters such as: when transfer to a nursing home would be acceptable; when physical restraints would be acceptable; preferences in food and clothing; and what religious observances would be appropriate.

When appointing the personal representative, there are some other things that must be considered. Most importantly, the client must decide when the representative will have the power to act.

Typically, the representative is to start acting only upon the client’s incapacity, but the client must consider how that incapacity will be determined, whether by the representative, by the family doctor, or by someone else. Sometimes, says MacGregor, a directive is stored with the client’s lawyer with instructions that it is not to be released until the lawyer has determined that the client is incapacitated. This aspect of the directive will often be affected by the applicable legislation in the client’s home province, so it should be raised with the lawyer.

Other issues involved in appointing a representative are outlined by Carter in his book, including consideration of the following issues:

n If two or more representatives are appointed, must they always act together? If not, when can one representative act alone?

n What happens if there is a serious disagreement between the representatives?

n What happens if the representative can’t or won’t act when the time comes?

n Using the directive:

All the hard work of preparing a directive will be lost if it’s not in the right hands at the right time.

The representative should have the original directive (unless it’s left with the lawyer until required), the family doctor should have a copy, and so should any other involved caregivers.

Carstairs suggests that clients photocopy their personal directive, reduce it and keep a copy in their wallets. Alternatively, clients could keep a notice in their wallets indicating that they have a personal directive. This trick would help to keep emergency medical teams informed of the client’s directive.

n Additional information:

There are some very good publications available to assist those who are preparing personal directives. They include Carter’s book, published by Self-Counsel Press, and Molloy’s book, published by Penguin Books Canada Ltd. Both of these books can be found in bookstores across the country.

The Office of the Public Guardian in Alberta has prepared a booklet called Choosing Now For the Future: A Guide to Writing Your Personal Directive, which is available by phoning (403) 427-7945.