Tag: assisted

22 Jun

Assisted Suicide and Estate Issues

Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , 0 Comments

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

21 Jun

Assisted Suicide and Mental Capacity

Hull & Hull LLP Capacity, Litigation Tags: , , , , , , , , 0 Comments

There has been much in the media lately on the British Columbia Supreme Court decision concering assisted suicide.

In the decision, Carter v. Canada (Attorney General), 2012 BCSC 886 CanLII, the Court struck down the provision in the Criminal Code that prohibits physician-assisted suicide.

(Section 241 of the Criminal Code provides that “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”)

The lengthy, well-organized decision deals with the question in great detail.

One aspect of the decision particularly pertinent to our area of practice addresses the government’s position that the impugned section is necessary in order to avoid the risk of wrongful death of incompetent persons. The government argues that it can be difficult to determine whether a person is capable of making a decision to end their own life.

The court accepted evidence to the effect that, even taking into account the possibility of cognitive impairment or depression in patients, and the possibility that physicians may be influenced by inaccurate assumptions about their patients, it is feasible for physicians to assess competence with high reliability.

The court concluded, on this narrow point, that it is feasible for properly-qualified and experienced physicians to reliably assess patient competence, including in the context of life-and-death decisions, so long as they apply a very high level of scrutiny appropriate to the decision and proceed with great care.

Thank you for reading.

Paul Trudelle – Click here for more information on Paul Trudelle

11 Mar

Assisted Reproductive Technology and Succession Law – Hull on Estates Podcast #101

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , , , , , , , , , , 0 Comments

Listen to Assisted Reproductive Technology and Succession Law

In this episode of Hull on Estates, Megan Connolly and Rick Bickhram discuss some interesting legal issues that surround assisted reproductive technology and succession law.

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