Category: Health / Medical
Estate planning lawyers have both the privilege and the responsibility of providing guidance and advice to clients while they are at key stages in their lives. A good lawyer’s role involves turning a client’s mind to the future and planning for turbulent times before they arise. As one grows old and the risk of serious illness increases, it is important to consider difficult medical decisions that will need to be made, and the impact those decisions might have on your loved ones. Lawyers can help in this preparation, for example with naming a substitute decision-maker who can help direct doctors when the patient becomes incapable, as well as by drafting advanced care directives that lay out the wishes of the patient regarding treatment of serious illness and the extent that life-prolonging measures should be used. While such “advanced care directives” have no legal standing in Ontario, they are still important in that they can provide crucial guidance to decision-makers and medical practitioners when drafted correctly. On the other hand, they could be confusing to decision-makers and hinder medical professionals when drafted in an inflexible manner.
The Lawyer’s Role
Firstly, the language of these directives should be directed to the patient’s decision-maker, and not to the medical practitioner. They should be drafted as advice and guidance to the decision-maker, and not as rigid rules that a medical professional might feel obligated (but not legally compelled) to follow. This is crucial as any lawyer drafting such a document should appreciate the “shared decision-making” model between patient and doctor. Important medical decisions are not made in a vacuum and the availability of different treatment options as well as the weight of their risks and benefits can vary with changing circumstances. It is difficult for a rigid legal document to accommodate the nuances of such a complex situation, but one that supports and guides a decision-maker in their conversations with medical professionals can be extremely valuable. With skilful drafting, the two-way decision-making process between doctor and substitute decision-maker can be facilitated, instead of hindered.
The drafting of advanced care directives should be centered around the values and preferences of the patient as opposed to specific treatment options. The American Bar Association advises that there should not be a focus on specific clinical intervention for “distant hypothetical situation” but rather on the patient’s “values, goals, and priorities in the event of worsening health”.
Finally, the planning process for important medical decisions regarding serious illness requires input from both doctors and lawyers to ensure treatment directions can be drafted with the nuance required for complex medical situations. The ABA suggests that “lawyers and health professionals should aim for greater coordination of advance care planning efforts”, and such collaboration will help clients and decision-makers be as prepared as possible to make informed decisions.
The Client’s Role
When it comes to what clients can do, while preparing a legal document is an important step, it should be reinforced by candid conversations with decision-makers, family, and friends. This significantly eases the burden on decision-makers, as they can carry out their role in stressful situations with the peace of mind that they are not second-guessing their loved one’s wishes when it comes to treatment.
Another way clients and their decision-makers can prepare for the future is by consulting resources that facilitate the planning process. An example of such a resource is planwellguide.com, which provides guidance on important issues from choosing a substitute decision-maker, to elaborating on the pros and cons of different care options, to specific factors to consider when making an advanced care plan.
A Gift of Great Value
While the lawyer’s skill in drafting is important to making an effective plan, a lawyer’s role can extend past legal documents and into transmitting a forward-thinking approach to clients. This approach requires careful consideration and reflection on the part of the client regarding their values and priorities when faced with serious illness, as well as having frank conversations with loved ones. While having these types of conversations may not be the most merry activity over the holiday period, giving a loved one that peace of mind is a gift of immeasurable value.
Thank you for reading!
Ian Hull and Sean Hess
According to this CNN article, a scientific breakthrough has occurred thanks to research from the Arizona State University and Texas A&M University. These scientists have, for the very first time, identified the structure of telomerase in plants.
Telomerase is an enzyme that creates the DNA of telomeres.
>>Telomeres protects our cells from aging as our cells multiply.
>>>If our cells are protected from aging, then so will our bodies…
This breakthrough will allow scientists to study how telomerase in plants compare to the ones in animals, including humans! For example, there is a pine tree, named Methuselah, that is 4,845 years old in California. It is so inimitable that the location of this particular pine tree is kept secret for protection.
On the flip side, certain cells that have too much telomerase can be deleterious to our health, like cancer cells. The ability to stop a cancer cell from multiplying by shortening its telomeres could be revolutionary!
Fun fact: these components of life are so important that the 2009 Nobel Prize in Physiology or Medicine was awarded to Elizabeth H. Blackburn, Carol W. Greider, and Jack W. Szostak for their research on how chromosomes are protected by telomeres and telomerase.
Thanks for Reading!
There are constantly new studies suggesting different ways to slow both physical and mental aging. This month alone, the news has featured research suggesting the following:
- Aging with pets in place can increase life satisfaction overall, and research suggests that pets may be associated not only with less loneliness, stronger social support systems, and increased participation in the community, but also better cardiovascular health, lower cholesterol, and lower blood pressure.
- A study from the University of Leeds suggests that tickling may slow down aging. The study involved the use of electrodes on the participants’ ears to simulate a tickle-like tingling sensation. Two weeks of 15-minute daily tickling therapy were believed to improve the balance of the autonomic nervous system.
- People who are optimistic may live longer. For groups of both women and men, those who were optimistic long-term had a better chance of living to age 85 (and beyond). Optimism has been linked with goal-setting and healthier habits and, accordingly, fewer optimistic people are believe to die prematurely from stroke, heart disease, or cancer.
- Consistent with previous research, a new study by the University of Iowa has linked exercise to a healthy aging brain. Even a single bout of exercise was considered to improve cognitive function and working memory in older participants.
While there may be nothing to prevent aging altogether and/or to totally eliminate the risk of suffering from Alzheimer’s disease or other age-related cognitive decline (absent any major scientific breakthrough), in general, taking health and wellness more seriously from an earlier age may improve quality of life and independence down the road.
Thank you for reading.
Other blog posts that may be of interest:
Oakland Rose is no ordinary child. He is special in more ways than one.
Oakland was diagnosed with Autism at the age of 2 years old and had no verbal communication until the age of 5.
Oakland is currently 20 years old. Although his verbal communication has drastically improved, he is not able to engage in abstract thinking. Oakland’s responses are often rehearsed and premeditated. He is not able to take public transportation alone. Although Oakland will graduate from a specialized high school program, he will never attend university. Oakland has the capacity of a young child.
Oakland will be dependent on his parents for the rest of his life.
Approximately 1 in 66 Canadian children were diagnosed with Autism Spectrum Disorder in 2018. Autism is just one of many developmental disorders that children are diagnosed with each year.
Families with children with special needs are in a unique position when it comes to estate planning. Planning for one’s death and ensuring that your loved ones are supported is an overwhelming task for the average person. For parents with special needs children, the task becomes even more burdensome.
According to one author, a child with special needs includes any child who, at birth or as a result of an illness or injury, is physically, mentally or emotionally disabled. While some people with special needs have successful careers, many will be dependent on their parents for the rest of their lives. Not only will the person be physically and emotionally dependent on their parent, but they will also be financially dependent. As a result, parents of a special needs child face exceptional estate planning challenges.
The higher functioning a special needs person is, the more likely he/she will require assistance from a parent’s estate. This is because government funding typically only provides for basic necessities.
Estate planners must determine whether their clients have children or other immediate family members with special needs. They must also ascertain that individual’s level of functioning. Specialized planning will be required for these families.
A parent of a special needs child might wish to consider:
i) Providing financial compensation for future caregivers in their will
ii) Setting up a special needs trust to ensure their child is not disqualified from government benefits – this trust will supplement but not replace the government benefits
iii) Creating a life care plan for their child which includes educational, living and career planning
iv) Writing a letter of intent summarizing the child’s habits, likes and dislikes
v) Naming a guardian if your child is under the age of 18
It is important to remember that children with disabilities have evolving needs. Thus, parents should create an estate plan that allows for flexibility. The plan should be reassessed and updated regularly to ensure it is in line with the child’s current needs.
Although creating a will and considering your own mortality is a daunting experience, it is far better than the alternative of leaving your child without adequate support!
Thanks for reading!
David Morgan Smith and Tori Joseph
Canada, as most people will know, has an aging population and the issue of dementia has become more and more prevalent over the years, as it affects the ability of those afflicted, to live and function independently.
A strategy to address this problem is important given the statistics, however, another interesting aspect of this live issue is the work being done to develop a means of preventing and minimizing the impact of this disease on people in the future.
Dr. Rosanna Olsen is the leader and director of the Olsen Lab and a scientist at the Rotman Research Institute (RRI) at Baycrest as well as an Assistant Professor at the University of Toronto.
Dr. Olsen noted that early detection of dementia is important for effective treatment of the disease. Given that no test can currently detect dementia before the onset of symptoms, Dr. Olsen has undertaken research that will help in the development of non-invasive and cost-effective eye-tracking tests that will identify those at risk of dementia before the onset of the symptoms.
Dr. Olsen will receive $546,975.00 over five years for her work in establishing a set of new eye-tracking and brain-imaging biomarkers that will assist in the earlier detection of Alzheimer’s disease.
I, for one, am very interested in seeing the results of this study and how they may impact the detection of Alzheimer’s disease in the future.
Thanks for reading!
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We’ve blogged quite a bit recently on the various technologies and breakthroughs that are being made in Alzheimer’s, including the use of Artificial Intelligence in detecting early signs of the disease and research on new treatment methods. As anyone who has worked with affected individuals and their caregivers can attest, Alzheimer’s and dementia are extremely challenging and will increasingly affect more families. It’s no surprise then that researchers and governments are taking steps to address Alzheimer’s disease and dementia.
Last month, the Canadian Federal government announced its comprehensive dementia strategy (for news coverage, see this CBC article). The release of the strategy comes on the heels of the passage of the National Strategy for Alzheimer’s Disease and Other Dementias Act in 2017 which allowed the government to take steps to begin developing a national dementia strategy.
The strategy aims to broaden awareness of dementia and advance the following “national objectives”:
- Prevent dementia by advancing research and expanding awareness of and support in adopting lifestyle measures that can increase the prevention of Alzheimer’s disease and dementia;
- Advance therapies and find a cure by supporting and implementing research; and
- Improve the quality of life of people living with dementia and caregivers by eliminating stigma, promoting early diagnosis and care, and better supporting caregivers.
As part of the national strategy, the Federal budget (released on March 19, 2019) allocated $50 million over five years towards implementing the dementia strategy. The release of the national strategy and funding to address this issue has been welcome news to organizations in Canada dedicated to tackling Alzheimer’s and dementia.
Hopefully, the release of this strategy will promote the continued advancement of breakthroughs in Alzheimer’s and dementia research.
Thanks for reading!
In estate litigation, medical records are key sources of evidence with respect to the capacity of the deceased. In most cases, the parties seek and obtain an order for their disclosure at an early stage. The order serves to waive any doctor-patient privilege that would otherwise attach to the records.
Litigants and their lawyers must, in most cases, be careful to ensure that such an order is in place prior to seeking such medical records. Doctors, too, must ensure that such an order has been obtained and that they are therefore authorized to release the medical records.
A recent decision, Smith v. Muir, illustrates the possible perils of improperly seeking medical records. That case involved a motor vehicle accident. Trial was approaching and defence counsel wrote to two of the Plaintiff’s doctors. Defence counsel served them with a summons to attend at trial, and also the following request: “We will require an entire copy of your file for preparation of this matter for trial. Would you please forward to us a complete copy of the entire contents of your file, including … . Should you be unable to provide us with this documentation, please ensure that you bring your original complete records with you upon your scheduled attendance at trial.”
The Plaintiff learned of this, and then moved to have defence counsel removed as lawyer of record. While the court did not remove counsel, it was highly critical of the defence lawyer’s conduct. The court stated that the request for medical records directly from the Plaintiff’s doctors, rather than through the Plaintiff’s lawyer or through the court, was inappropriate. The court noted that the letters did not indicate that defence counsel did not have the Plaintiff’s consent to disclosure, or that the doctor may wish to seek advice before disclosing. The letter, said the court, “invites the unwitting health practitioner to breach his or her duty of confidentiality and the privacy of the patient”.
The court referred extensively to the decision of Burgess v. Wu, which sets out the appropriate protocol to follow for obtaining medical records. The appropriate routes are either through the discovery provisions of the Rules, or through a disclosure order from the court. Otherwise, “A plaintiff’s health care professional has a duty to refuse to disclose information about his or her patient unless required to do so by law”.
Although the Plaintiff’s motion was unsuccessful, the court awarded the Plaintiff her costs.
In estates litigation, matters are complicated due to the fact that the patient is no longer able to consent to disclosure, and there often isn’t an estate trustee who can consent. In those cases, an order is almost always required.
Have a great weekend.
My colleague, Sayuri Kagami, blogged Tuesday on efforts to use artificial intelligence in scanning for risk factors that have historically contributed to premature death. Such efforts constitute a significant development in policy pertaining to preventive models of health care.
Broadly speaking, delivery of health care services can generally be categorized into one of two models. The reactive model of health care is one based on acute care, and focuses on the treatment of illness as it arises and on an ongoing basis. Your typical visit to the emergency room would generally fall within the scope of reactive health care.
The preventive model of health care, in contrast, is a proactive treatment model emphasizing, as one might expect, the prevention of illness and the mitigation of key risk factors contributing to chronic disease. This model emerged largely as a result of the significant financial strain placed on public health care models in Ontario and abroad by the reactive model.
Treatment of acute and chronic illness on an ongoing and extended basis is, by most accounts, exceedingly expensive and inefficient. In the context of estate planning, we are frequently exposed to the considerable financial and emotional tolls of treating Alzheimer’s disease and other illnesses impacting cognition.
Since the 1970s, policy makers have made significant strides in advocating for a treatment model that sets out the benefits of preventive health care in an attempt to reduce the burden of reactive treatment models. In particular, this model focuses on steps that may be taken by individuals to reduce the risk of chronic illness in order to alleviate the strain placed on the public health care system.
A recent study performed by Cancer Care Ontario identified four main risk factors common to more than 90% of instances of chronic disease:
- Tobacco consumption;
- Alcohol consumption;
- Lack of physical activity; and
- Unhealthy eating habits.
Proponents of the preventive have therefore advocated for increased funding devoted to mitigating each of these factors in order to reduce reactive spending down the road.
If you didn’t pay attention to your grandmother while growing up, take it from the experts: an ounce of prevention is worth a pound of cure.
Thanks for reading.
The use of artificial intelligence (“AI”) is saturating all facets of life and death. While we might often think of AI as some future product of a technologically advanced society, it is already in common use. Think of Apple’s Siri and Google Translate; both require AI in order to function.
Earlier this year, my colleague, Garrett Horrocks, blogged on a study showing the promising use of AI in detecting Alzheimer’s. This month, a recent study out from the University of Nottingham explores the use of AI in predicting premature death of middle-aged persons. The study shows promising results.
AI and Bias
While many reports are optimistic in how such predictive models can improve preventative health care, others are more cautious. A recent article from Wired raises the issue of potential bias in such AI models. The article delves into the concerns of scholars that AI might adopt and even promote bias as a result of implicit biases that already exist. Take, for example, the Amazon AI recruitment tool which was designed to review resumes of job applicants and pick the top candidates. Amazon abandoned the project after experiencing several issues, including the program explicitly discriminating against women. The program did so by penalizing candidates who graduated from women’s colleges or had the word “women’s” in their resume (e.g. “women’s chess club”).
The Wired article also raises concerns about existing biases in health care services, such as how patients of different ethnics groups are treated differently for pain with studies in the US finding that racial and ethnic minorities tend to be undertreated for pain, compared to non-Hispanic white persons. While the Wired article raises concerns about the potential biases that can be adopted and/or promoted by AI, the article also notes the potential for AI to reduce bias by focusing on objective factors affecting a person’s health.
AI and the Law
Many say that the law and lawyers are resistant to change (who still relies on faxes?). Despite any such resistance, the legal system, like everyone else, is being dragged into the world of AI, whether ready or not. Just as AI is revolutionizing health care, legal products implementing AI are being developed, with some estimating that over 100,000 jobs in the legal sector will be automated by 2036.
More importantly, however, is the ongoing need for the law to adapt to the changing world of AI. The implementation of AI in our everyday life has significant ramifications from the products recommended to us while online shopping to whether or not we might receive proper preventative health care. With the potential for ethical abuses and unintended consequences (such as discrimination), it will be interesting to see how (or if) laws and regulations develop to address these new advances in AI.
Thanks for reading!
It’s a near universal experience. Almost everyone over age 50 understands the rather uncomfortable, humble experience of the colonoscopy. For me, it wasn’t the worst experience in the world, but when I had my introduction to this procedure many years ago, I remember being delighted to hear that by the time my next one was due, they would likely have an entirely new “non-invasive” procedure in place.
For example, this “camera pill”.
Or these, which include a “virtual colonoscopy” or “at-home stool tests.”
With the profit-driven U.S. health care system just south of us, and the general hatred of the colonoscopy procedure, I knew I’d be in the clear. Bottom line (couldn’t resist that pun) – I’d never have to go through the procedure again.
So, what happened to innovation?
My, how time flies – I’m due for another colon check, but it appears that medical advancements haven’t flown quite as fast. What procedure did my doctor recommend for testing? A colonoscopy of course. Same clinic, same specialist, same 1.5 days of awful prep.
Need I say it? They can put someone on the moon, but they can’t figure out a way to check for colon polyps without a long tube going where you don’t want it to. At this rate, I think we’ll have cities on Mars before I can avoid the indignity of “now, just relax; you’ll feel some pressure, but it shouldn’t be too uncomfortable.”
Think of the positives
I do need to keep the many benefits of our health care system in mind. We live in a country that routinely checks us for common cancers – at no out-of-pocket cost. And let’s face it, not eating for two days highlights the hunger that many people experience daily. So yes, time for an attitude reset and a positive mindset as I go into battle.
But I still hope that 10 years from now, a doctor just waves a magic wand over my belly and pronounces me cancer-free. Until then, bottoms up!
Thanks for reading.