In 2013, Canadians aged 65 or older made up 15.4% of the country's population. In Prince Edward Island that number is 17.3%. These numbers are projected to increase given Canada's aging population and the progressive shift of the baby boomers into senior citizenship. With this ever-aging population comes a variety of economic and mortal certainties. A greater number of people will be retiring, shifting wealth to younger generations, and, of course, planning for death.
A thoroughly considered estate plan is necessary to ensure that your assets go to those people or organizations that you want, gifts are made in a tax-efficient way, and the costs and administrative duties for your estate are minimized. Part of the estate plan may involve a Health Care Directive. These documents (often referred to as living wills) are becoming more commonplace and even newsworthy. Generally, a Health Care Directive is a legal document that sets out a person's wishes for medical treatment (or the withholding thereof) prior to death.
A Health Care Directive becomes important when an individual is receiving health care or treatment, but for some reason is unable to provide consent to such health care or treatment. A typical example is where an individual is unconscious, but is hooked up to artificial life support systems. In such a case, if that individual has a Health Care Directive, it will ordinarily state who is appointed to make decisions on their behalf for health care or treatment.
In Prince Edward Island Health Care Directive are governed by the Consent to Treatment and Health Care Directives Act. Part III of that Act sets out who may execute a Health Care Directive and what legal requirements are necessary in order for a Health Care Directive to be valid.
The document typically stipulates those types of treatment, medication or procedures to which the individual consents, under what circumstances the individual is to be permitted a natural death without life support systems, indicates whether palliative care or medication to reduce suffering ought to be administered, and ordinarily appoints a proxy in order to make medical decisions on his or her behalf (all of which become effective after the individual is incapable of making or communicating decisions).
Note that where a proxy is not appointed in a Health Care Directive, the Act sets out a hierarchy of individuals who may have decision making authority for an incapacitated person (including a spouse, child or sibling)
The importance of a properly drafted Health Care Directive became evident in headlines in February 2014 after the British Columbia Supreme Court issued a decision concerning Margaret Anne Bentley. Ms. Bentley, who had by all accounts led a "full and vibrant life", worked as a nurse and a realtor, raised 4 children and spent a great deal of time enjoying the outdoors, sadly developed advanced Alzheimer's disease and moved into a long-term care facility in 2009. In 1991, a time when she was capable of exercising consent and understanding a legal document, she signed a statement of wishes wherein she declared, among other things, as follows:
If at such a time the situation should arise that there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by artificial means or "heroic measures".
Interestingly, in that statement of wishes she also further requested under these circumstances "No nourishment or liquids". The case was complicated by evidence of a purported second statement of wishes which indicated that "I accept basic care".
Sometime after being admitted to the care facility, Ms. Bentley was no longer capable of eating independently. She was being fed by support personnel at the care facility, which Ms. Bentley appeared to accept. Certain family members brought an application to court seeking an order that Ms. Bentley not be given nourishment or liquids. The application was opposed by the care facility and others.
The ultimate issue to be determined by the court was whether Ms. Bentley had consented to being provided nourishment or liquids. The court determined that for various reasons neither statement of wishes constituted an advance directive, that feeding her was a form of "personal care" and not "health care" as governed by the relevant legislation, and that by her actions, Ms. Bentley was capable of consenting to being fed. The court also found that some of the provisions in the purported statements of wishes were so unclear they could not be considered a valid directive, even if the documents themselves were valid. In the result, the court refused to order that nourishment or liquids be withheld from Ms. Bentley. Simply put, her Health Care Directive was neither executed validly nor drafted clearly enough.
Anne Bentley's case is important in that it highlights the importance of clearly expressing ones wishes and signing a properly drafted Health Care Directive. Anne Bentley's family undoubtedly expended a great deal of time, anxiety, grief and money in bringing their application, as surely did the staff of the care facility. All of this might have been avoided with a valid and clearly drafted Health Care Directive.
Take the time to consider your wishes for medical care and treatment in the event that you become incapable of providing informed consent to treatment and discuss a Health Care Directive with your legal advisor.
A thoroughly considered estate plan is necessary to ensure that your assets go to those people or organizations that you want, gifts are made in a tax-efficient way, and the costs and administrative duties for your estate are minimized. Part of the estate plan may involve a Health Care Directive. These documents (often referred to as living wills) are becoming more commonplace and even newsworthy. Generally, a Health Care Directive is a legal document that sets out a person's wishes for medical treatment (or the withholding thereof) prior to death.
A Health Care Directive becomes important when an individual is receiving health care or treatment, but for some reason is unable to provide consent to such health care or treatment. A typical example is where an individual is unconscious, but is hooked up to artificial life support systems. In such a case, if that individual has a Health Care Directive, it will ordinarily state who is appointed to make decisions on their behalf for health care or treatment.
In Prince Edward Island Health Care Directive are governed by the Consent to Treatment and Health Care Directives Act. Part III of that Act sets out who may execute a Health Care Directive and what legal requirements are necessary in order for a Health Care Directive to be valid.
The document typically stipulates those types of treatment, medication or procedures to which the individual consents, under what circumstances the individual is to be permitted a natural death without life support systems, indicates whether palliative care or medication to reduce suffering ought to be administered, and ordinarily appoints a proxy in order to make medical decisions on his or her behalf (all of which become effective after the individual is incapable of making or communicating decisions).
Note that where a proxy is not appointed in a Health Care Directive, the Act sets out a hierarchy of individuals who may have decision making authority for an incapacitated person (including a spouse, child or sibling)
The importance of a properly drafted Health Care Directive became evident in headlines in February 2014 after the British Columbia Supreme Court issued a decision concerning Margaret Anne Bentley. Ms. Bentley, who had by all accounts led a "full and vibrant life", worked as a nurse and a realtor, raised 4 children and spent a great deal of time enjoying the outdoors, sadly developed advanced Alzheimer's disease and moved into a long-term care facility in 2009. In 1991, a time when she was capable of exercising consent and understanding a legal document, she signed a statement of wishes wherein she declared, among other things, as follows:
If at such a time the situation should arise that there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by artificial means or "heroic measures".
Interestingly, in that statement of wishes she also further requested under these circumstances "No nourishment or liquids". The case was complicated by evidence of a purported second statement of wishes which indicated that "I accept basic care".
Sometime after being admitted to the care facility, Ms. Bentley was no longer capable of eating independently. She was being fed by support personnel at the care facility, which Ms. Bentley appeared to accept. Certain family members brought an application to court seeking an order that Ms. Bentley not be given nourishment or liquids. The application was opposed by the care facility and others.
The ultimate issue to be determined by the court was whether Ms. Bentley had consented to being provided nourishment or liquids. The court determined that for various reasons neither statement of wishes constituted an advance directive, that feeding her was a form of "personal care" and not "health care" as governed by the relevant legislation, and that by her actions, Ms. Bentley was capable of consenting to being fed. The court also found that some of the provisions in the purported statements of wishes were so unclear they could not be considered a valid directive, even if the documents themselves were valid. In the result, the court refused to order that nourishment or liquids be withheld from Ms. Bentley. Simply put, her Health Care Directive was neither executed validly nor drafted clearly enough.
Anne Bentley's case is important in that it highlights the importance of clearly expressing ones wishes and signing a properly drafted Health Care Directive. Anne Bentley's family undoubtedly expended a great deal of time, anxiety, grief and money in bringing their application, as surely did the staff of the care facility. All of this might have been avoided with a valid and clearly drafted Health Care Directive.
Take the time to consider your wishes for medical care and treatment in the event that you become incapable of providing informed consent to treatment and discuss a Health Care Directive with your legal advisor.
