Tag: End of Life Planning
The looming threat of COVID-19 has caused some people to see their own mortality in a new and clearer light. In addition to the existential and/or religious contemplation that may arise from this reality, individuals are also turning their minds to more practical end of life planning.
An end of life plan, also referred to as an advance care plan (“ACP”), sets out how an individual would like to be cared for in the final months of their life. In Ontario, an ACP will usually include a Power of Attorney for Personal Care designating a trusted person(s) to make healthcare decisions on behalf of an individual in the event of their incapacity.
An ACP may also include an advance directive, or “living will”, which is a written statement of wishes about future care. Unlike a Power of Attorney, advance directives are not referenced in Ontario’s health care legislation and are not a legal document. However, Ontario law does recognize that wishes and preferences regarding future care choices that are expressed when mentally capable ought to be respected and followed, if possible. Thus, a Power of Attorney or other substitute decision maker is expected to abide by an advance directive to the extent possible. This makes advance directives a useful tool for anyone seeking greater control over the medical treatment they receive while incapable.
Interestingly, a COVID-19-specific advance directive has emerged in the United States. Dr. Andrea Kittrell, a head and neck surgeon practicing in Virginia, established an organization called Save Other Souls (“SOS”) whose objective is to assist individuals with their advance care planning as it pertains to COVID-19-related medical treatment. Specifically, SOS provides guidance on preparing a document that has been coined the “COVID-19 SOS Directive”. This document is a type of altruistic advance directive wherein a person expresses their wish to defer lifesaving critical care hospital placement, medication, and/or equipment to another patient in need during a declared emergency and where there are insufficient health care resources to go around.
Since the COVID-19 SOS Directive was developed for use in jurisdictions outside of Ontario, I will not opine on the effectiveness of this particular document. However, the document is a reminder of the importance of considering one’s own ACP in light of the global pandemic. For information on COVID-19-related advance care planning for Canadians, you can check out Dying With Dignity Canada’s COVID-19 ACP Toolkit. Another helpful resource is the Plan Well Guide which is discussed in Nick Esterbauer’s blog here.
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COVID-19 has prompted innovation and legislative updates in terms of the way that lawyers can assist our clients with estate and incapacity planning. A new tool created by a professor at my alma matter, Queen’s University, has recently emerged to supplement formal planning by making it easier for clients to create end-of-life treatment plans and to discuss their end-of-life wishes with their families and health care teams.
The Plan Well Guide is a free online tool that allows users to formulate a “Dear Doctor letter”, which can be provided to a physician for discussion and can be reviewed with family members (or otherwise an attorney or guardian of personal care) to ensure an understanding of the person’s wishes during a health crisis. The website also includes other information and resources relevant to end-of-life decision making.
I went through the process of creating an end-of-life plan using this resource and found it to be user-friendly and straightforward. Some highlights of the Plan Well Guide include the following:
- There are prompts that ask whether a user has a Power of Attorney for Personal Care and Will in place, which may act as a prompt to obtain a lawyer’s assistance if necessary.
- The website illustrates the user’s wishes, with examples to confirm the accuracy of the information that the user inputs. Where the illustration is not consistent with the user’s actual wishes, the user can go back to modify priorities to better reflect their wishes.
- Quizzes to ensure proper understanding of terms such as ICU treatment, comfort care, and the nature of resuscitation.
- There are prompts for both outstanding questions or issues for discussion with a healthcare provider and explanations of wishes to provide those reading the document with a better understanding of the user’s rationale behind their wishes.
Especially in the midst of the current pandemic, tools like this that make end-of-life planning more accessible, while having the potential to expose deficiencies in incapacity or estate planning and encouraging an open discussion of wishes in terms of medical treatment, can be helpful resources.
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Other blog posts that may be of interest:
Other than the last name of Denis Shapovalov (Canada’s newest rising tennis star), one of the most difficult pronunciations I’ve come across lately is pharmacogenomics – a form of personalized medicine that could be a game-changer in terms of linking the right drug to the right person to improve their health outcome.
Like Shapovalov, it’s a name worth remembering. Pharmacogenomics involves laboratory testing of a person’s DNA to determine gene variations that can predict how a person will respond to medications. Test results can identify which medications will be effective, avoiding the use of medications that would have little or no effect, or many side effects.
For example, there are many medications available to help treat depression, but these drugs can take several weeks to take effect and for a person to feel any improvement. And in many cases, after several weeks, there is no improvement, so the individual is weaned off the first drug and on to the next choice. In the meantime, the person continues to suffer, valuable time is lost, and there’s no assurance that round two will go any better. An effective medication may be found eventually, but months or even years could go by.
Had the individual been introduced to the right medication from the start, they would have been spared months of suffering. In many cases, that’s what pharmacogenomics can provide.
Pharmacogenomic testing is done with a simple cheek swab, and lets a doctor prescribe medications more precisely based on an individual’s DNA.
Toronto-based health care provider Medcan says that while there are many factors that affect our responses to drugs – such as height, weight, gender, and age – anywhere from 20% to 95% of the variation in how a person responds to medication can be directly linked to genetic differences, and specifically the differences in how they metabolize a given drug: http://www.medcan.com/medcan-insights/workforce-wellness/reduce-disability-absenteeism-costs/.
For example, if a person is a fast metabolizer, he or she may need more of a given drug or more frequent doses; if he or she is a slow metabolizer, lower doses of a drug may be necessary to avoid an overdose.
And this is not a “one day we’ll be living on Mars” future possibility. This type of testing is happening right now. In fact, it may be coming to a pharmacy near you soon. The B.C. Pharmacy Association has already conducted trials with an Australian genetic testing company: http://www.benefitscanada.com/benefits/health-benefits/pharmacogenomic-testing-to-be-available-in-pharmacies-across-canada-93665.
As estate litigators, we’re used to dealing with “end of life” issues. It’s nice to find a simple test that can enhance “quality of life”, while we’re here to enjoy it.
Thank you for reading … Enjoy the rest of your day.
Life expectancy has unsurprisingly been on the rise over the course of the last several decades. You would think with the superior quality of life many currently experience that there is hope for more people to live up to 100 and beyond. After all, the Guinness World Record for the longest living person is held by Jeanne Calment, who died in 1997 at age 122!
However, Ms. Calment’s status as a supercentenarian is a rarity. Even more exceptional is her living into her 120s. No one else has been verified as doing so. Further, it was recently reported that researchers calculate 115 to likely be the maximum life-span. Without a breakthrough that fixes age-related problems, the new research apparently indicates that living beyond this age is not probable.
Some geneticists disagree, taking the view that as there has been success in extending the life and health of certain laboratory animals, the same may be achievable for humans. With technological advances may come innovations that will meaningfully impact longevity.
The debate about whether this is achievable is expected to continue. Nonetheless, we know that people are generally living longer and, coupled with this, will have more pressure on their financial resources, as well as the increased likelihood of mental decline. So I believe it to be prudent to encourage our clients to seek the appropriate professional advice on how to plan for a longer retirement or an extended work-life, as well as for coping with cognitive impairment. Some suggestions with respect to the latter include:
- appoint your Powers of Attorney(s);
- make a Will;
- designate beneficiaries on your bank and investment accounts;
- have life insurance in place;
- simplifying your finances (e.g. consolidate accounts);
- create an inventory of assets; and
- perhaps most important, communicate with your family.
Thanks for reading and have a great weekend,
Last week, I wrote about the recent trend of Death Cafes. As a reminder, a “Death Cafe” is a place for people to gather and discuss death with others, often strangers, over tea and cake. The goal of the Death Cafe is provide a space for people to speak about death, which is a taboo subject for many. Because of this taboo, people often avoid speaking about their own death to their friends and family. This reluctance to think about and speak forthrightly on the subject of death might prevent people from creating an effective estate plan. The Death Cafe can act as a forum for individuals to get more comfortable with the concept of dying and planning for the distribution of their assets upon death.
The current trend is to host Death Cafes among strangers, but it is worth thinking about holding a death cafe with loved ones. One major problem in succession and estate planning is communication. As mentioned in The Family War, a major point of tension between families in an estate battle is that they did not communicate and gauge their family member’s intentions prior to their death. Holding a family Death Cafe would provide an opportunity for families to avoid a large amount of fighting and grief in the future.
The Death Cafe website has some helpful information about how to hold a death cafe. They suggest avoiding an overly structured session, instead allowing the conversation to find its direction by allowing everyone to say what they want to say first. After this free-form conversation, whoever is facilitating the death cafe might introduce some specific questions. This would be a good time to address specific expectations and wishes regarding the will or funeral arrangements. In hosting a death cafe among family members, some topics to touch on might include what to expect after losing a family member, how to prepare for loss, possible sources of support and guidance, and avenues of communication for close and more distant family members. By creating an open platform and place for communication, some family turmoil might be avoided.
The Death Cafe website has helpful resources including checklists, conversation topics, and a blog.
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When most people think about the term “midwife”, they probably think about someone who has been specially trained to assist an individual throughout pregnancy and in giving birth. While this certainly is the classic definition of a “midwife”, it appears that the term may no longer exclusively apply to those who assist at the earliest stages of life, but also perhaps to those who assist in life’s final stages as well. As recently reported by the Toronto Star, a group in British Columbia has self-stylized themselves as “death midwives”. Their purpose? To assist individuals in their final stages of life.
While the group has received some resistance for utilizing the term “midwife” in relation to their work, the actual sentiment behind their work appears to be unchallenged. With the recent enactment of assisted dying legislation in Canada, the previous stigma surrounding discussions regarding end of life care may be lifting, and people may begin having more open and honest conversations regarding how they would like to die.
The rise in the use of the term “death midwife” or “death doula” has been reported for some time, with the CBC having done a feature on the practice last year. As discussed in such a feature, the use of a “death midwife” can allow for a healthy dialogue for an individual in confronting their own mortality, helping them to avoid their “nightmare scenario” of their own death. Death midwives can help create “death plans”, and assist with social and psychological support throughout what otherwise could be a very difficult process. Once the individual is deceased, they can also assist the family with vigils and funerals, and assist to guide them throughout the immediate aftermath of the individual’s death.
Have a great weekend.