Assisted Suicide and Estate Issues
Yesterday, I blogged on the Carter v. Canada (Attorney General) decision on assisted suicide, and how it addressed the issue of the mental capacity of the individual.
In thinking about the case from an estates perspective, I considered the potential impact of assisted suicide on life insurance. Most life insurance policies have a contestability clause that provides that insurance will not be paid out if the policy holder commits suicide within two years. Thus, an insurer may not pay out if there is an assisted suicide within two years. However, as noted in a posting on Insure.com, the odds of the contestability clause issue arising are “very small”. Most insurers will not issue a policy to a terminally ill applicant. If the applicant fails to disclose the medical condition, the policy may be void for that reason alone.
Another issue that arises is whether the public policy that precludes a person from inheriting from an estate on the basis that the potential beneficiary should not benefit from the crime. The Carter decision strikes down the provision criminalizing assisted suicide, but only in the context of “physician-assisted suicide”. The wording of the declaration goes even further, and declares that the provisions are of no force and effect
“to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.”
Thus, the criminality of assisted suicide involving, say, a husband and wife, or parent and child, remains. Such an assisted suicide will therefore likely trigger the prohibition on inheriting.
The wording of the declaration of the court addresses another issue relevant to our practice. While it is generally understood that by a Power of Attorney, the grantor can grant power to do anything that the grantor can do except make a will, the declaration strikes down the criminality of physician assisted suicide only if the patient makes that decision personally, and not through a substituted decision maker.
Have a great weekend.
Paul Trudelle – Click here for more information on Paul Trudelle.