Category: Health / Medical
A “Living Will” or “Advance Directive” is a document that indicates the grantor’s preferences with respect to health conditions and treatment, including the level of medical intervention. It is a guide for the person who must communicate with physicians and make health care decisions in the event the patient is not able to do so him or herself. It is different from a Power of Attorney for Personal Care, which is a document naming a specific person to act on your behalf.
An Advance Directive can be very detailed and tailored to the individual’s personal circumstances. For example, on the University of Toronto Centre for Bioethics website you can find information on a Cancer Specific Advance Directive.
Given the complex medical nature, it may well be that the specifics of such a directive lay more comfortably in the bailiwick of the health care professional rather than the legal professional. Ideally, the Power of Attorney for Personal Care should include a detailed health care directive. This approach offers the assurance that the grantor’s wishes are taken into account without the wording in the Advance Directive inadvertently voiding his or her Power of Attorney for Personal Care.
A Power of Attorney for Personal Care may also include conditions or restrictions other than Advance Directives such as limiting the attorney’s ability to act until a confirmation of incapacity has been obtained, and determining the method of assessing capacity.
If a person becomes incapable of making personal care decisions and has no Guardian of the Person or Power of Attorney conferring the authority to make health care decisions, the Health Care Consent Act of Ontario provides a statutory hierarchy of persons who can provide consent on the incapable person’s behalf in descending order of authority as follows:
- Spouse or partner
- Child or parent
- Brother or sister
- Any other relative
Therefore, it is especially important to prepare a Power of Attorney for Personal Care if you would not want your spouse, child or parent to make health care decisions on your behalf should you become unable to make them yourself.
For further information on this topic, see Q & A on Powers of Attorney and Living Wills by the Office of the Public Guardian and Trustee for Ontario, or this book about Living Wills by M. Dianne Godkin.
Thanks for reading.
Sharon Davis – Click here for more information on Sharon Davis.
Pseudodementia is a dementia syndrome which resembles dementia, but is actually the result of an underlying psychiatric disorder, most often depression. While the presentation of pseudodementia in the elderly varies widely, it closely mimics dementia in that common symptoms include:
· poor attention and concentration;
· a reduction in speed of cognitive response;
· compromised problem-solving and decision-making; and
· impaired immediate recall.
The two identifying hallmarks of pseudodementia are: i) there is no known neurological condition to otherwise explain the symptoms and ii) the cognitive deficits show considerable improvement, or even reverse, when the psychiatric illness is treated.
The concept of pseudodementia is a controversial one, in that it is considered a ‘soft diagnosis’, as there are no explicit diagnostic criteria; a physician’s checklist, if you will. There is no validated test, or group of tests to differentiate depression-related cognitive dysfunction from degenerative conditions such as Alzheimer’s Disease. Compounding the confusion surrounding pseudodementia is the fact that depression is frequent in patients with irreversible dementia. As a result, pseudodementia is often misdiagnosed as simply ‘true’ dementia.
In the context of estates litigation, a diagnosis of pseudodementia has the potential to significantly change the landscape of a capacity challenge. As an example, an article in the Bulletin of the American Academy of Psychiatry and the Law describes a nearly successful attempt to defraud a patient of their estate during her ‘presumed’ dementia, when in fact, she suffered from pseudodementia from which she later made a dramatic recovery.
Jennifer Hartman, Guest Blogger
For those of you with one eye on the next page of the calendar, Hull & Hull LLP will be posting our third series of medical/health blogs starting on Monday January 4th, 2010. The series will run every Monday thereafter in the month of January, for a total of four blogs. The following subjects will be featured:
- Lewy Body Dementia
- Korsakoff’s Syndrome
- Huntington’s Disease
We hope this series proves both useful and informative. Please feel free to contact us at email@example.com with your feedback.