Tag: End of Life Planning

17 Sep

Advance Care Planning for COVID-19

Arielle Di Iulio Capacity, General Interest, Health / Medical, In the News, Power of Attorney Tags: , , 0 Comments

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.[1] 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.

Thanks for reading!

Arielle Di Iulio

[1] See Malette v. Shulman, 1990 CanLII 6868 (ON CA), http://canlii.ca/t/g1757; and Fleming v. Reid, 1991 CanLII 2728 (ON CA), http://canlii.ca/t/1p78q

27 Apr

Encouraging Discussion About End-of-Life Wishes

Nick Esterbauer Elder Law, Estate Planning, Health / Medical, Power of Attorney Tags: , , , , , , 0 Comments

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.

Thank you for reading.

Nick Esterbauer


Other blog posts that may be of interest:

18 Oct

Personalized medicine – just a cheek swab away

Suzana Popovic-Montag Health / Medical, In the News, Uncategorized Tags: , , , 0 Comments

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.

Pharmacogenomics explained

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.
Suzana Popovic-Montag



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