Tag: Health / Medical
Estate planning lawyers have both the privilege and the responsibility of providing guidance and advice to clients while they are at key stages in their lives. A good lawyer’s role involves turning a client’s mind to the future and planning for turbulent times before they arise. As one grows old and the risk of serious illness increases, it is important to consider difficult medical decisions that will need to be made, and the impact those decisions might have on your loved ones. Lawyers can help in this preparation, for example with naming a substitute decision-maker who can help direct doctors when the patient becomes incapable, as well as by drafting advanced care directives that lay out the wishes of the patient regarding treatment of serious illness and the extent that life-prolonging measures should be used. While such “advanced care directives” have no legal standing in Ontario, they are still important in that they can provide crucial guidance to decision-makers and medical practitioners when drafted correctly. On the other hand, they could be confusing to decision-makers and hinder medical professionals when drafted in an inflexible manner.
The Lawyer’s Role
Firstly, the language of these directives should be directed to the patient’s decision-maker, and not to the medical practitioner. They should be drafted as advice and guidance to the decision-maker, and not as rigid rules that a medical professional might feel obligated (but not legally compelled) to follow. This is crucial as any lawyer drafting such a document should appreciate the “shared decision-making” model between patient and doctor. Important medical decisions are not made in a vacuum and the availability of different treatment options as well as the weight of their risks and benefits can vary with changing circumstances. It is difficult for a rigid legal document to accommodate the nuances of such a complex situation, but one that supports and guides a decision-maker in their conversations with medical professionals can be extremely valuable. With skilful drafting, the two-way decision-making process between doctor and substitute decision-maker can be facilitated, instead of hindered.
The drafting of advanced care directives should be centered around the values and preferences of the patient as opposed to specific treatment options. The American Bar Association advises that there should not be a focus on specific clinical intervention for “distant hypothetical situation” but rather on the patient’s “values, goals, and priorities in the event of worsening health”.
Finally, the planning process for important medical decisions regarding serious illness requires input from both doctors and lawyers to ensure treatment directions can be drafted with the nuance required for complex medical situations. The ABA suggests that “lawyers and health professionals should aim for greater coordination of advance care planning efforts”, and such collaboration will help clients and decision-makers be as prepared as possible to make informed decisions.
The Client’s Role
When it comes to what clients can do, while preparing a legal document is an important step, it should be reinforced by candid conversations with decision-makers, family, and friends. This significantly eases the burden on decision-makers, as they can carry out their role in stressful situations with the peace of mind that they are not second-guessing their loved one’s wishes when it comes to treatment.
Another way clients and their decision-makers can prepare for the future is by consulting resources that facilitate the planning process. An example of such a resource is planwellguide.com, which provides guidance on important issues from choosing a substitute decision-maker, to elaborating on the pros and cons of different care options, to specific factors to consider when making an advanced care plan.
A Gift of Great Value
While the lawyer’s skill in drafting is important to making an effective plan, a lawyer’s role can extend past legal documents and into transmitting a forward-thinking approach to clients. This approach requires careful consideration and reflection on the part of the client regarding their values and priorities when faced with serious illness, as well as having frank conversations with loved ones. While having these types of conversations may not be the most merry activity over the holiday period, giving a loved one that peace of mind is a gift of immeasurable value.
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Ian Hull and Sean Hess
Here are some sobering facts: according to the Alzheimer Society of Canada, 747,000 Canadians were living with Alzheimer’s disease and other dementias in 2011. If nothing changes in Canada, this figure is expected to rise to 1.4 million people by 2031.
Beyond the economic costs, dementia can put immense pressures on family caregivers. According to the Alzheimer Society, family caregivers spent 444 million unpaid hours in 2011 towards the care of someone living with dementia, a number that could rise to 1.2 billion unpaid hours per year by 2040.
Given the increasing prevalence of dementia, many sectors – including the legal community – are thinking about how to improve the quality of life for people with dementia and create a more dementia-capable society. For example, I recently came across an interesting event called DementiaHack, a hackathon that will be taking place in Toronto from November 7 to 9, 2015.
For those who are unfamiliar with the concept, a “hackathon” is an event that allows tech types – such as computer programmers and software developers – to work collaboratively on new projects over a short timeframe. Now in its second year, DementiaHack brings together leading medical experts on dementia with developers and designers, challenging them to develop new and innovative products to address the needs of individuals living with dementia, as well as family caregivers, institutional caregivers and researchers.
For this year’s event, hackathon teams will work intensively over the weekend to develop innovative solutions to the challenges of dementia. The weekend will culminate in science fair demos on Sunday, November 8. Then, on November 9, the hackathon finalists will show off their wares to an audience of potential investors and customers. The most successful teams will be eligible to receive a number of different prizes, including a grand prize that consists of a business trip to the United Kingdom to pitch their project at a health conference.
It is exciting to see the work that is being done to support the needs of people living with dementia. If you are interested in learning more about DementiaHack, visit their website for more information about this year’s event. And be sure to check out the Youtube video for the demonstration for last year’s grand prize winner, CareUmbrella, a project that used smartphones and Near Field Communication (NFC) tags to help improve the lived experience of people living with dementia.
Thank you for reading and have a great weekend.
Umair Abdul Qadir
In a forthcoming article to be published in The Journal of the American Academy of Psychiatry and the Law, Ian Hull and Dr. Kenneth Shulman, among others, explore the concept of the lucid interval. A lucid interval is a legal concept invoked by those propounding a will to claim that a testator, suffering from some cognitive decline, experienced a moment of cognitive clarity sufficient to make a valid will. The medical term associated with this phenomenon is a “cognitive fluctuation.” Or in layman terms, we often refer to a person, who suffers from significant cognitive decline (such as dementia), as having “good days” and “bad days.”
However, recent medical findings on the subject of cognitive fluctuations suggest that this legal defence may have some challenges, namely, with regard to duration, significance and superficiality.
First, medical data suggests that any cognitive fluctuations are extremely short in duration, often in the realm of seconds or minutes. Such short-term changes in mental state are unlikely to allow a testator to appreciate all the factors needed in order to make a valid will. Second, medical data suggests that even if a testator could achieve some degree of mental lucidity, the fluctuations are so small and insignificant that no formerly incapable person could become temporarily capable so as to make a valid will. Finally, Hull and Shulman contend that higher level cognitive functions—such as memory and executive functioning (the ability to identify, evaluate and discriminate among various options)—are necessary to achieve testamentary capacity. And even when cognitive fluctuations occur, they occur in the area of alertness and attention—which are more superficial, lower level cognitive functions.
However, it is important to keep in mind that testamentary capacity is a legal concept that focuses not on a testator’s general mental state but on their mental state in the context of making a will. As such, it remains uncertain as to how courts will treat this data.
Regardless of which way courts interpret the new medical data, it is important that clinical realities inform legal decisions as they can and do enlighten courts with regard to this complex issue.
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It comes as no surprise that with the global demographic shift towards an aging population and the prevalence of baby-boomers now reaching retirement age, the worlds of estate planning and healthcare are becoming ever more intertwined.
While estate planner’s awareness of the effects of dementia on testamentary capacity moves to the forefront of issues to be outlined during initial discussions with clients, the healthcare sector is battling the condition by analysing both preventative and post-diagnostic care options.
The concerns over dementia have become so ubiquitous that the first G8 dementia summit in London was held, which focused on ways in which to prevent this condition which is expected to affect 1.4 million Canadians by 2040. The summit hopes to develop a co-ordinated global action on dementia, with leading nations pledging to develop a cure, or at the very least a treatment, by 2025.
On the home front, in British Columbia, Premier Christy Clark is hoping to redesign health care facilities to better respond to the needs of dementia patients, calling for specialized beds and training for health care workers. Clark’s statements follow in the wake of the tragic death of 76 year-old Joan Warren in North Vancouver who, suffering from dementia, wandered away from her health care facility and succumbed to the elements earlier last week.
While global and local political attention mounts, and efforts to tackle this terrible affliction escalate, all signs point to a growing social issue worthy of attention from both national leaders as well as individual citizens. Beyond prevention and treatment, it should be quite apparent that those of us who are concerned about being afflicted by such an ailment in the future should properly plan for their prospective incapacity by having Powers of Attorney for Property and Personal Care as well as a well-crafted Will drafted. Such planning may help to ensure that families are aware of their loved one’s last wishes well in advance of the onset of such a debilitating condition.
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At present, there is no legal framework in Ontario governing the storage of asthma inhalers within schools. The absence of such a framework shifts the decision-making into the hands of the individual school administrators and/or school boards. What has evolved as a result of this legal vacuum is a patchwork of asthma management plans. Many of these plans lump asthma inhalers with other medications (incl. antibiotics, medications used to treat symptoms of ADHD, etc.), thus requiring them to be locked in the principal’s office. This inappropriate one-size-fits-all approach to medication storage in schools is a textbook example of ‘rulitis’: ‘a slavish adherence to rules and regulations that goes beyond common sense’ (with credit to André Marin, Ontario Ombudsman, for coining that apt phrase).
Within schools, the placement and storage of rescue inhalers in a secure, centralized location is problematic for a number of well-documented reasons, including: i) Storage of inhalers away from the person precludes the immediate use of the medication at the onset of symptoms. Centralized storage of asthma inhalers flies in the face of the fact that an inhaler delivers a dose of rescue medication, and thus should be considered a life-saving measure, not unlike an epinephrine auto-injector. It is impossible to overstate the differences in outcomes between immediate use of an inhaler and delayed use after symptoms have progressed; and ii) Students are apprehensive about asking for help accessing a centrally-stored inhaler due to embarrassment around being considered ‘medically vulnerable’ and the fear of being deemed disruptive by staff and/or peers.
Sandra Gibbons and MPP Jeff Yurek (Elgin-Middlesex-London) have been collaborating on a private members’ bill which, if passed, will force every school board in Ontario to implement a comprehensive asthma policy, each of which must also permit a student to carry his or her own asthma medication on their person. On October 9, 2012, Gibbons’ son Ryan died after suffering a severe asthma attack during recess at his school in Straffordville. Ryan’s attack evolved quickly, his classmates carried him to the principal’s office where his inhaler was kept, but Ryan was already unconscious. Ryan’s school, with tragic consequences, had a zero tolerance policy against inhalers, and had gone so far as to confiscate spare inhalers that he had brought to school just in case he suffered from an attack.
In contrast to Ontario, the U.S. has three prongs of federal legislation in place allowing students to carry inhalers on their person: the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act. Approximately 6 million American children have asthma, and 200 of them die each year as a result of an asthma attack. The federal legislation is in place as much to save those 200 lives as it is to reduce outpatient visits to doctors and hospital E.R. visits (~4.6 million and 700,000 visits per yr, respectively). Across Canada, over half a million children are affected by asthma and approximately 20 children die each year as the result of an asthma attack. The Lung Association of Ontario estimates that 1 in 5 children have asthma in this province.
This week’s media coverage of Yurek’s proposed private member’s bill (“Ryan’s Law") has raised corollary questions regarding epinephrine auto-injectors (EpiPens) at schools, since they also deliver a rescue medication. Just last month, the U.S. passed the School Access to Emergency Epinephrine Law which encourages schools to carry ‘stock’ epinephrine (i.e. an undesignated supply). Encouragement is in the form of financial incentives; schools that carry stock supplies will get preference for receiving federal grant monies. While Sabrina’s Law requires all school boards in Ontario to establish an anaphylactic policy, there is currently no provision in the province to allow schools to stock an undesignated supply of auto-injectors.
Ryan’s Law passed second reading with all-party support at Queen’s Park on December 5, 2013 and will return for third reading some time in the spring of 2014.
Jenn Hartman, Medico-Legal Consultant
* photo of Ryan Gibbons, from Tillsonburg News
Legal aside: It should be noted that both Sabrina’s Law and Ryan’s Law (as it has been tabled) include ‘Good Samaritan’ language which provides immunity from lawsuits for ‘any act done in good faith’ in response to an anaphylactic reaction or an asthma attack, respectively.
In Canada, many aging residents struggle to cover the costs of long-term care, forced to remain at home without adequate assistance. With the rising costs associated with long-term caregiving, families are often burdened to take on the care or financial support of an aging loved one.
Several European countries, however, are making elder care a priority, on the basis that healthy citizens provide for a stronger economy. In Denmark and Sweden, almost all long-term care costs are paid for through municipal taxation and government grants. The belief is that the higher taxes are accomplishing long-term benefits for the entire country as its population ages.
In terms of population dynamics, Sweden is now where the Canadian population will be in the next twenty years. There, patients who suffer from Alzheimer’s and dementia are separated from those who do not have such a condition. The support provided to Swedish facility residents reflects that which is actually needed, and they are permitted to otherwise remain relatively independent. Support workers at long-term care homes where patients with Alzheimer’s disease are present receive extra, also publically-funded, training.
The focus of the system in Denmark is on choice and prevention. After reaching age 67, seniors are entitled to free around-the-clock home care. Public health nurses visit biannually to ensure that the senior is in good physical and mental health, in regular contact with family and friends, eating enough, and taking any prescribed medication. Once a senior chooses to move to a long-term care facility, they are able to retain supervised freedom in a facility with a “home-like feel”.
Humanitude is a French caregiving philosophy, in which eye contact, touch, and verbal communication are used to show respect for patients. Humanitude has recently been gaining attention in Japan with respect to the treatment of patients with dementia. So far, the results have included calmer and more cooperative patients.
Halifax, Edmonton, and Victoria are the first Canadian cities to implement a new model of long-term caregiving, influenced by Danish and Swedish principles. Those cities have seen better connection of physicians to care facilities and significant decreases in visits by seniors to the emergency room. Still, on a national level, some believe that Canada is in need of a complete overhaul of its long-term care system to render it adequate to meet the needs of seniors as our population ages.
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According to the Canadian Cancer Society, Canadians have a 40% chance of developing cancer during their lifetime and a greater than 25% chance of ultimately succumbing to the disease. Cancer insurance has recently been introduced in Canada to provide individuals who are insured with a lump sum payment, to be spent as the patient chooses, if ever diagnosed with cancer.
The direct and indirect costs of cancer treatment are extreme, especially in the United States, where the many procedures and hospital-administered medications are not covered by any government health insurance plan. Even in Canada, where we benefit from provincial health insurance plans, the costs of prescription medications required to continue with cancer treatments can be significant and a barrier to access to treatment for individuals without additional coverage. The treatment may also interfere with employment and limit future earning potential.
The concept of cancer insurance may sound familiar. Cancer insurance shares many similarities with critical illness insurance, but is more specific in its scope and its eligibility criteria are relatively relaxed. Cancer insurance is much newer to Canada than critical illness insurance, which is a well-established planning tool that pays out following a heart attack, stroke, or cancer diagnosis. No Medical Life Insurance.ca claims to be the first provider to offer this type of insurance to Canadians. In the United States, cancer insurance is better established and is sometimes recommended to supplement health insurance for individuals who are at high risk of developing cancer.
Although it may be more accessible than critical illness insurance, anyone who has received cancer treatment or screening within two years of applying for coverage will not be insured. Further, the amount of coverage offered to individuals with an immediate family member who has received a cancer diagnosis at any point in the past will be limited.
One drawback to critical illness insurance and cancer insurance alike is that coverage does not normally begin until three months after a policy is purchased. This means that if the insured receives a cancer diagnosis within three months (or suffers a heart attack or stroke, in the case of critical illness insurance) of deciding to obtain coverage, proceeds will not be distributed.
When it comes to insurance planning, the emphasis still seems to be on life insurance. Typically, individuals spend more time planning their estates than planning for potential (mental or physical) incapacity and how various expenses will be paid during their lifetime. With cancer diagnoses on the rise worldwide, and approximately 187,600 Canadians receiving a cancer diagnosis every year, cancer insurance and critical illness insurance may be worthy of greater consideration.
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A recent Canadian study suggests that compensation in the amount of $10,000 could greatly increase numbers of individuals willing to act as living kidney donors. A reward system could also result in lower costs to provincial healthcare, due to the high costs associated with dialysis, and significantly improve the quality of life for those now awaiting kidney transplants.
The kidneys are a paired organ, but only one is required to remain in good health. Living kidney transplants have the highest success rate of any transplant procedure, yet its frequency is much lower than it could be. 9,800 Ontarians are currently in need of a kidney transplant, and many suitable living donors, who are capable of saving lives, already exist.
The procedure for a living transplant is not risk-free. However, with ongoing developments and highly experienced surgeons who are familiar with such procedures, the risks associated with donating a kidney are less significant than in the past.
There tend to be better survival rates for individuals who receive kidneys from live donors. This is thought to be due to the better health of the kidney from a live donor, the potential for a match to be found prior to the removal of the kidney, and the immediate functioning of a live kidney after transplanted in its recipient. The timing of the transplantation can be better planned, so that it is scheduled for a time when the donor and recipient are both in good health and less likely to suffer complications as a result of the procedure.
Currently, living donors benefit from the payment by the provincial government of donation-related costs, such as travel, parking, food, accommodation, and loss of income, but do not receive any further compensation. Donating a kidney is a compassionate gesture, with the potential to save a life. The typical alternative for the transplant recipient often involves living on dialysis until the death of a compatible registered organ donor.
There is some reluctance to implement this kind of financial incentive. Some worry that paid donation could become a mere financial transaction or, subsequently, lead to the development of a two-tiered system, in which organs are donated to those who are willing to further incentivize the donation with their own funds.
Kidneys are not the only organ that can be donated by a living donor – parts of the liver, lungs, small bowel, and pancreas are all capable of being removed without compromising the health of the donor. More information about becoming a living organ donor is available at the Gift of Life website.
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Last year at this time Prince Edward Island was debating whether to initiate a plan that had the potential to automatically transform PEI’s 140,000 residents into automatic organ donors, unless they “opted-out”. This plan gained momentum when it became clear that there was an organ shortage and the province was desperately in need of donors.
This month a very interesting comment in the National Post has sparked discussion amongst Ontarians regarding this important issue and the contrasting models of “opting-in and “opting-out”.
There are two main methods for determining voluntary consent: “opt in” (only those who have given explicit voluntary consent are donors) and “opt out”(anyone who has not refused is a donor).
The “opt-out” model presumes consent of organ donation and all citizens are automatically considered donors, unless they specifically register to opt-out.
Opt-out models are widespread across Europe and countries such as Spain, Portugal and Belgium have one of the highest rates of organ transplants.
According to The Canadian Transplant Society, over 90% of Canadians support organ and tissue donation, but less than 25% have made plans to donate. The comment in the National Post discusses the option of shifting the current opt-in model, as the numbers of organ donation remain stagnant and nearly 1,500 people are waiting for a life-saving transplant.
Organ and Tissue donation is an important cause that has the ability to save many lives. According to the Trillium Gift of Life, one donor can save up to eight lives through organ donation and enhance as many as 75 others through tissue donation.
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Organ and Tissue donation is an important cause and has the ability to save many lives. If you are thinking of registering to donate, it is important to be well-informed in order to make an educated decision.
Many people mistakenly believe that their age or medical history makes them ineligible to be an organ or tissue donor. The physical and medical condition of the organs and tissue will be assessed at the time of death and will determine what can be donated. Anyone 16 years of age regardless of their medical condition is encouraged to register consent for organ and tissue donation in Ontario.
On www.beadonor.ca you can listen to stories from adults and children whose lives have been saved by organ donors. You will hear about a young girl named Ryley who had an enlarged heart and needed a heart transplant when she was only a few months old. The transplant saved her life and her family is so thankful. Ryley is now an active six year old child with her whole life ahead of her.
If you do choose to register your consent, your registered donation decision is stored in a confidential Ministry of Health and Long-Term Care database and is only disclosed at end of life to your family for the purposes of honouring your decision. Organ and tissue donation has no financial impact on one’s family or estate and donation does not impact funeral arrangements. Also, you can withdraw or change your donor registration at any time.
To register your consent, or to check your registration status in Ontario visit www.beadonor.ca. To learn more information about organ and tissue donation visit www.giftoflife.on.ca or contact Trillium Gift of Life Network, Ontario’s agency responsible for organ and tissue donation and transplantation, at 1-800-263-2833 or by email at firstname.lastname@example.org.
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