The past two years have brought a number of changes to the law related to assisted dying in Canada, and Canada now permits medical assistance in dying provided certain criteria are met.
While estate matters aren’t always the priority when dealing with someone who is terminally ill and suffering, they should be considered to ensure that families don’t make a bad situation even worse with unintended estate consequences. And the first step in considering the estate consequences of assisted dying is knowing what you can and can’t do in Canada in relation to assisted dying.
Here’s a quick recap of what’s changed in Canada since 2015.
What prompted the change
The Supreme Court of Canada ruled in Carter v. Canada [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do] that the parts of the Criminal Code that prohibited medical assistance in dying would no longer be valid.
How the government responded
The federal government followed the Supreme Court ruling by passing legislation in 2016 that allowed eligible Canadian adults to request medical assistance in dying. To qualify for medical assistance in dying, an individual must be 18 years or older and meet the following four eligibility criteria:
- Have a serious and incurable illness, disease, or disability
- Be in an advanced state of irreversible decline in capability
- Endure physical and psychological suffering that is intolerable to them; and
- Their natural death has become reasonably foreseeable.
They must also be capable of providing informed consent at the time that medical assistance in dying is provided.
Estate planning issue: Would an assisted death disqualify a life insurance payout?
To recap, most life insurance policies won’t pay a death benefit if the policyholder commits suicide within a certain time period after the policy takes effect, typically two years. However, the Canadian Life and Health Insurance Association has said that if someone follows the legislated process for medical assistance in dying, providers would pay out on policies that are less than two years old.
As always though, providers would not pay if an individual misrepresented his or her health when signing the contract, or if the policy specifically exempted the particular illness for which the holder sought a medically assisted death.
Can requests for medical assistance in dying be made in advance?
Advance requests for dying are not permitted. This means that Canadians with conditions like Alzheimer’s or Huntington’s disease that lead to mental incapacity will not be granted the right to consent while they are still of sound mind, as their disease is unlikely to be in an advanced state at that time, nor would their natural death be reasonably foreseeable.
However, some people are drafting clauses in their health care directives and living wills that provide their representative to give consent for assisted dying if they become mentally incompetent and terminally ill in the future. While this has no effect under current laws, the hope is that the law will change and recognize these previously drafted clauses. You can find a good discussion of this issue here:
Is taking someone off life support the same as assisted dying?
It is not. The law is clear that the decision to withhold or withdraw life support where there is no hope of recovery is not assisted dying (it is a natural death), and there are no direct estate implications for those actions.
Estate planning issue: Can a family member, such as a spouse, provide assistance in dying?
A family member can only provide assistance by following the process outlined in the legislation, which involves, amongst other things, a written, witnessed request by the terminally ill individual for medical assistance in dying, and a review of the case by two medical practitioners.
In other words, the spouse or other family member cannot take matters into their own hands – something that could occur if the terminally ill individual is near end of life and suffering, but lacks mental capacity to request assistance in dying. The law in Canada is clear that a person found guilty of committing murder is prevented from inheriting the estate of the victim. Taking steps on your own to hasten someone else’s death, even on compassionate grounds, could be considered a crime and could have estate implications.
For a good summary of end-of-life law and policy in Canada, Dalhousie University provides helpful information on a complex subject: http://eol.law.dal.ca/?page_id=236.
Thank you for reading … Enjoy your day,