Tag: Advance Directive
There is a great scene in the movie, The Post, where the Washington Post has to decide whether to publish the Pentagon Papers. If the posting ‘damages national security’, they will be faced with a lawsuit. The subjectivity of what may damage national security, and the discussion that ensued between the lawyers, board members, and journalists at the Post got me thinking about end of life wishes and the use of boilerplate clauses.
Almost all powers of attorney for personal care include language addressing end of life decisions. Common is the boilerplate ‘no heroic measures’ clause, which often reads as follows, “…if there is no reasonable expectation of my recovery…I be allowed to die and not be kept alive by artificial or heroic measures”.
But what does ‘heroic measures’ actually mean? For some, such as in Bonnie Grover’s 1995 article in the Journal of Law & Policy: “heroic measures conjures up visions of brilliant and daring doctors, enormously skilled nurses and technicians, high-tech machines, masses of tubing and bottles, and perhaps even a patient lying somewhere amongst it all…”. For others, “…medical practice recommends use of heroic measures if there is a scintilla of a chance that the patient will recover, on the assumption that the measures will be discontinued should the patient improve”. Differing interpretations go on and on. So what should be done about it?
To ensure that end of life wishes are carried out as intended, grantors, in addition to making a power of attorney, should consider making a living will/advance directive, and discuss their wishes with their attorney. Clear instructions and wishes should also be conveyed to the drafting solicitor.
Drafting solicitors should review end of life clauses in detail with their client, make sure they are understood, and ensure that detailed notes are taken.
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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.