Tag: In the News

04 Nov

End of Life Decision-Making in Minnesota – who has the final say?

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Last week, in a ground-breaking decision, Rasouli, the Supreme Court of Canada ruled that consent is necessary before ending life-sustaining treatment. The SCC dismissed an appeal by doctors at Sunnybrook Health Sciences Centre who sought to withdraw treatment from Mr. Rasouli, a severely brain-damaged patient who they say has no hope for recovery.

In Minnesota, courts are now facing the issue of whether guardians must receive a judge’s approval to remove life support or whether guardians can remove life support from their own legal authority.

On October 16th, 2013, the high court agreed to review the case of Jeffers Tschumy. Mr. Tschumy was a 57 year old mentally disabled man who had been under guardianship since 2008. Mr. Tschumy lived in a group home until he choked on food and was declared severely brain damaged with little hope for recovery. Mr. Tschumy had no family and no health care directive.

The Allina Health System requested that a judge allow Mr. Tschumy to be removed from life support, either by clarifying that his guardian had the right to make the decision, or by issuing an order allowing his removal from life support. District Judge Jay Quam denied the guardian’s request for sole authority to make that decision, but authorized the termination of Tschumy’s life support. The court cautioned that its specific authorization would always be required.

Judge Quam reasoned that the law does not specifically allow guardians the right to end life support: “Simply stated, if the Legislature intended to give a guardian the power to end the ward’s life, it would have explicitly done so.”

The Minnesota Court of Appeal reversed Judge Quam’s ruling and reasoned that the final authority lies with the guardians and that end of life decisions should not be dictated by the court.  The Court of Appeal stated: “Although courts are experienced in making reasoned and impartial decisions, doctors and medical ethics committees have the most appropriate knowledge and expertise to evaluate the potential for a ward’s long-term recovery and quality of life and advising a guardian on end-of-life decision-making”.

It will be interesting to see what the Minnesota court will decide in this case and whether guardians or judges will have authority in end-of life decision-making.

Thank you for reading.

Ian M. Hull

 

 

 

 

23 Oct

The Right to Life: A Family Matter

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A living will is a very important document that should comprise every estate plan. On October 18th, 2013, the Supreme Court of Canada ruled against withdrawing life support from Hassan Rasouli, a 61-year old retired mechanical engineer and husband to Parichehr Salasel, an Iranian trained doctor. In hindsight, a living will may have prevented this lengthy and very public court battle over Hassan’s family’s personal desires for treatment. Hassan currently remains comatose at Toronto’s Sunnybrook Hospital.

Two medical practitioners pursued the right to withdraw life support without Hassan’s family’s consent. The practitioners also sought to circumvent Ontario’s Consent and Capacity Board, a tribunal comprised of doctors and ethicists who make complicated determinations for issues facing families in these and similar circumstances.

The very pointed issue on appeal was whether doctors are legally entitled to withhold life support they determine would merely maintain a patient who is in a state of ‘living death, without the need to seek consent from the patient’s immediate family. Our highest court has said no – that is a decision that must be made by Ontario’s Consent and Capacity Board.

With so many nuanced and ethically challenging concepts being raised in the appeal, the Supreme Court’s ruling is, in my view, one which is both legally and morally persuasive. The court reinforced the existing statutory scheme and directed the parties to follow it.

While, at first instance, the result of the case was certainly a ‘win’ for the family members fighting to sustain the treatment of their loved one, the result is likely to be far more pervasive. What we can take from the Rasouli decision, however, is the fact that, to save your family from having to make such a decision on your behalf, one should ensure that such wishes are clearly expressed in a professionally drafted living will. 

Thank you for reading! 

Suzana Popovic-Montag

15 Oct

Pulling No Punches: The NHL’s Persistent Concussion Problem

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Over the past few years I have written several articles about the incidence of head injuries in professional hockey.  Sid Crosby, Derek Boogaard, Rick Rypien and Wade Belak – these men have all played a role in my education about the perils of the sport.   On Saturday night, I finally made my way into the city to watch my first live hockey game (sidebar: in case you missed it, after three crazy see-saw periods, the Leafs’ centre Dave Bolland eked out the OT winner against the Oilers).   I craved a firsthand immersive experience in hockey culture, and I needed to know: Do dirty hits and fighting have a place in the game?  Is on-ice violence a necessary cog in the greater machine?

Since the start of the 2013/14 season, the media has been saturated with opinion pieces spouting the points and counterpoints in the hockey violence debate, and with good reason.   On October 1st, Habs’ forward George Parros engaged in a fight with the Leafs’ Colton Orr, awkwardly tumbled over his opponent and hit the ice face-first in an unbroken fall.  He lay motionless for several minutes and was ultimately carted off the ice on a stretcher.   Last week, Habs GM Marc Bergevin indicated to the Montreal Gazette that Parros was ‘almost symptom-free’.   Interesting concept, in theory, not unlike being ‘kind of pregnant’, I suppose.   Anyone who has suffered a concussion knows that all it takes is one lingering symptom to shift your life’s pace from 6th gear down to 1st.   You’re either symptomatic, or you’re not.  On October 4th, the Nashville Predators’ defenseman Roman Josi took a huge hit from Colorado’s Steve Downie and sustained what is reportedly his fifth concussion since 2009.  Not only has Josi not returned to the ice, but he has not even been able to work out since his head injury.  On October 8th, the Rangers’ Rick Nash sustained a concussion after taking a first-period headshot from Sharks’ defenseman Brad Stuart.   While Nash is on mandatory IR for 7 days, technically he could return to the ice this Wednesday, although the most recent reports indicate he is still ‘experiencing symptoms’.  This is familiar territory for Nash, as he was already forced to sit out four games in February of this year due to a concussion.

In the midst of these early season head injuries, researchers at a Mayo Clinic conference last week called for a ban on fighting at all levels of the sport.  As the sport is played now, they said, it causes too much trauma.  Scientists are calling for reforms in bodychecking and want to see fighting banned in the NHL, in the minors, as well as at the junior level. Researchers are asking for immediate ejection after a single fight in the NHL, because they firmly believe the NHL needs to serve as the role model for the rest of hockey.  Then just a few days after the conference wrapped up, hockey legend Bobby Orr wrote this in the Globe and Mail:  “But the more I look at the current state of the game, the more I realize a simple truth about it.  The threat of a fight, or the fear of doing something that might trigger retaliation, is a powerful deterrent.  It always has been, and it always will be.”   On the face of it, this seems like a reasonable argument, however a recent study out of the University of Ottawa found that ‘the kind of blow delivered in a hockey fight [particularly a left or right hook to the jaw], is as dangerous to the brain as it gets’.

           

So here we are, just a couple of weeks into the season, and already 3 players are out with concussions.  Head injuries.  Brain injuries.  The back and forth banter about the role of fighting in hockey, of course, continues.  I enjoyed the game on Saturday night. I soaked up the incredible agility of some of the players, their stickhandling skills, the game strategy…  It was, admittedly, a much more organic experience seeing the game played in person.   Then something changed.  Between the second and third periods, the lights dimmed, and bombastic choral action-movie-trailer type music filled the arena.   All eyes were on the Jumbotron, on which commenced a ‘fight reel’ with clips of a series of epic hockey fights through the history of the NHL.  All the ‘great’ enforcers were featured – Semenko, Domi, McSorley.  Nearly everyone rose to their feet, fists pumping, cheering; it was a surreal scene, and it had more than a whiff of Roman Colosseum to it.   In that moment, it was clear that in order for the incidence of brain injuries in hockey to be reduced, not only will NHL culture need to shift, but that of the audience as well.   Bruce Arthur, sports columnist for the National Post summed it up so eloquently, so tidily, in the summer of 2011, just a few days after Wade Belak reportedly hung himself:  “This shouldn’t be a political issue in the sport; it should be a human one.”

Jenn Hartman, Medico-Legal Analyst

14 Oct

To Be or Not To Be: The Right to Die in Canada – Follow Up On Provincial Jurisdiction:

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On October 2nd, Suzana Popovic-Montag posted a blog which discussed the ongoing provincial legislative debates in Quebec over the right-to-die in Canada through doctor assisted suicide.

Since the posting of that earlier blog, Ottawa has settled the constitutional validity of the provincial jurisdiction to hold such debates. Having determined this preliminary issue, provincial legislatures are now free to hold open discussions regarding the proposed Bill 52 without apprehension over the constitutionality of such debates. If this Bill is adopted, it may spur other provinces to enter into discussions, and possibly propose their own legislative reforms based on the precedent currently being set in Quebec. 

This small victory, while indeed a step forward for proponents of euthanasia, leaves much to be decided. Indeed, while the Federal Health Minister, Rona Ambrose, did reiterate the freedom of the provinces to debate the issue, she also affirmed that the Federal government is not planning to alter relevant Criminal Code provisions which currently prohibit assisted suicide at the national level.

The result of this bifurcated Federal stance on the issue of assisted suicide leads many to question how much of a step forward has really taken place. Whether the Federal government’s position supports the efforts demonstrated by provincial debate, or rather is simply a nod in favor of allowing the process to continue for the moment, is yet to be determined. It appears that presently, the Federal government is content to allow these debates to continue, leaving it to the courts to determine the constitutional validity of such legislation should it ever come into force.

Such judicial determination has been demonstrated as recently as on October 10, 2013, where the British Columbia Court of Appeal released a decision overturning a lower court ruling regarding Criminal Code provisions prohibiting assisted suicide. The finding of the Court of Appeal affirms that the current Criminal Code provisions regarding assisted suicide are constitutionally valid. However, the ruling also opened the door to a possible constitutional exemption that may aid those for whom the Criminal Code provisions produce a cruel effect. The ruling said that, “a constitutional exemption for those who are clear-minded … might not undermine the intention of the legislation”.

In the end, it must be remembered that the process of drafting and adopting such emotionally and politically charged legislation is often a prolonged one. While the preliminary debate regarding the jurisdiction to even discuss such changes appears to be temporarily settled, the substantive debate over whether to legalize assisted suicide practices, and how such practices should be monitored or restricted, continues. With an aging population and an empowered baby boomer generation, such debates will certainly be a hot topic in the months, and even years, to come.

Thank you for reading!

Ian Hull

13 Sep

Stigmatized Property in Ontario

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“The truth will come to light; murder cannot be hid long” – William Shakespeare, The Merchant of Venice.

In real estate, the value of a property can be affected by a history of murder or suicide. When does a vendor have the obligation to disclose the history of a property to a potential buyer?

In California, in the early 1980s, the vendor of a property failed to disclose to the buyer that a woman and her four children had been murdered in the house 10 years prior. After the purchaser moved in, she learned about the property’s history from a neighbor. She sued and successfully set aside the sale. The California Court of Appeal held that the vendor had a duty to disclose facts known or accessible only to him if the information had a significant, measureable effect on market value. In the United States, approximately half of the states have a duty to disclose a property’s history of murder or suicide.

In Ontario, the same has not been the case.  A Toronto Star article asks:

  • Should Ontario have laws making disclosure of stigmatizing events compulsory?
  • If so, should there be a time limit on disclosure?
  • Should sellers as well as agents be required to disclose?
  • Is it true that what a buyer doesn’t know won’t hurt him?

Holly LeValliant

 

 

05 Sep

Living and Dying on Mars

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Nearly 7,000 Canadians have applied to join the Mars One project aimed at putting a permanent human colony on Mars by 2013.

The trip is a one-way ticket to Mars; participants have to commit to spending the rest of their lives on Mars, leaving behind their friends, family and earthly possessions. It sounds almost like death, doesn’t it? Which prompted me to wonder – what will these Mars colonists do with their personal belongings when they leave? Will they give them away to friends and family? What about their money? Presumably there would be little use for legal tender on Mars, however, instead of giving it all away, these wanna-be Martians will probably want to hold onto their financial assets and appoint an Attorney for Property who can manage their finances for them in their absence.

According to the Mars One website, colonists will still be able to send electronic messages to Earth, they just may be delayed by up to 22 minutes. The participants will also have access to selected websites on the Internet, so there is a chance they can purchase digital goods online as well, although the Mars One website does not address this question directly.

The flight to Mars would take between 7 to 8 months. The initial group will be small with new groups arriving every two years, perhaps allowing for care packages to be sent to those already on the planet from home.

Since this is a one-way trip, those lucky few selected to go should ensure they have a solid Will and Power of Attorney drafted and in place well before their departure date.

Which leads me to also wonder – would an astronaut on a life-long trip on Mars would have the ability to alter a Will they made on Earth before they left? They could prepare a holograph Will (one written entirely in their own hand without the need for witnesses) but its not clear if the original document could ever make it back to Earth and be probated.

There are sure to be many more questions to be answered before the first shuttle launches towards the red planet, and I will definitely be following this story into the future.

Thanks for Reading!
Moira Visoiu

03 Sep

Living and Dying on Mars

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Nearly 7,000 Canadians have applied to join the Mars One project aimed at putting a permanent human colony on Mars by 2013.

The trip is a one-way ticket to Mars; participants have to commit to spending the rest of their lives on Mars, leaving behind their friends, family and earthly possessions. It sounds almost like death, doesn’t it? Which prompted me to wonder – what will these Mars colonists do with their personal belongings when they leave? Will they give them away to friends and family? What about their money? Presumably there would be little use for legal tender on Mars, however, instead of giving it all away, these wanna-be Martians will probably want to hold onto their financial assets and appoint an Attorney for Property who can manage their finances for them in their absence. According to the Mars One website, colonists will still be able to send electronic messages to Earth, they just may be delayed by up to 22 minutes. The participants will also have access to selected websites on the Internet, so there is a chance they can purchase digital goods online as well, although the Mars One website does not address this question directly.

The flight to Mars would take between 7 to 8 months. The initial group will be small with new groups arriving every two years, perhaps allowing for care packages to be sent to those already on the planet from home.

Since this is a one-way trip, those lucky few selected to go should ensure they have a solid Will and Power of Attorney drafted and in place well before their departure date.

Which leads me to also wonder – would an astronaut on a life-long trip on Mars would have the ability to alter a Will they made on Earth before they left? They could prepare a holograph Will (one written entirely in their own hand without the need for witnesses) but its not clear if the original document could ever make it back to Earth and be probated.

There are sure to be many more questions to be answered before the first shuttle launches towards the red planet, and I will definitely be following this story into the future.

Thanks for Reading!
Moira Visoiu

02 Sep

Final Words: Wills of Soldiers From WWI Documented

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The heartbreaking last recorded words of thousands of Britain’s fallen heroes from WW1 will be made available online. Her Majesty’s Court and Tribunal Service (HMCTS) has worked with Iron Mountain to ensure that its historic archive of 230,000 WW1 Wills will be available to the public electronically.

These Wills were written by soldiers as they headed to the Western Front. Before departing for the frontline, many servicemen would complete a personal, hand-written Will that they would keep in the pocket service book which was tucked into their uniform. More than half of the soldiers would be wounded and one in four would not return home.

Wills written by these soldiers ensured that their estates were administered in accordance with their last wishes.

In Ontario, Wills written by those in the military have few formal requirements. Under Ontario’s Succession Law Reform Act, the formal requirements for making a Will are quite onerous. A Will must be properly executed, or it is invalid. Section 4 requires that a properly executed Will must be signed by the testator (or by someone in his/her presence and under his/her direction). The signature must be at the end of the Will. The testator must make or acknowledge the signature in the presence of two witnesses who must be present at the same time. The two witnesses must then sign in the presence of the testator. Even slight technical deviations from this formula may invalidate a Will. 

Holograph wills may also be valid under section 6, but they too must meet some requirements. The holograph Will needs no witnesses, but it must be written entirely in the handwriting of the testator, with his or her signature. 

Section 5 of the Succession Law Reform Act offers a third, less onerous standard for executing a Will to members of the Canadian Forces, and to members of other naval, land or air forces, while in active service. They do not need witnesses or typed documents. They do not need to handwrite the document in their own writing, a task which may prove difficult in a bunker or field hospital. All that is required to make a will is “a writing signed by him or her or by some other person in his or her presence and under his or her direction”. This provision allows the testamentary wishes of a member of the Canadian armed forces to be valid and enforceable without burdening them with formalities.

For many soldiers in WWI, their wills and accompanying personal messages were the last words sent home to their loved ones. By making these documents available to the public, the HMCTS is ensuring that the memories of these brave men live on.

Thanks for reading.

Ian M. Hull

30 Aug

The Digital Legacy of Martin Manley

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The law is always racing to keep up with the pace of technological development. Nearly everyone today has some sort of online presence. Things like our social networking profiles, our music or video libraries, and our email accounts exist out there in the digital ether. What happens to an individual’s digital legacy after death is the subject of private innovation, novel litigation and, in some jurisdictions, innovative legislation. Until the law of wills and estates catches up, a person may have little control over his or her digital legacy. David Smith of our office was recently interviewed on Global News regarding this very issue. Until the law is more developed, it will be up to individuals to find innovative strategies to plan for the traces that they leave behind online. Martin Manley certainly did.

A blogger and sports writer, Martin Manley decided that he did not want to live past his 60th birthday. The story of his life and death is bittersweet – simultaneously tragic and inspirational. His suicide on August 15, 2013 received media attention from the likes of CNN, not only because of his loss, but because of what he left behind – a website detailing his life and his death. 

The late Mr. Manley’s website describes the details of his life. From childhood, through his two marriages, to his career at the Kansas City Star and his sports blog, SportsInReview.com, the website explains the life of Mr. Manley in his own words. It addresses his suicide and his reasons for it, but it also addresses his favourite movies, the foods he liked, and the styles of poker that he played.

Part tribute, part suicide note, part obituary, and part biography, exploring the website is a strange and somewhat moving experience. 

Although Mr. Manley’s approach is somewhat startling, no one can dispute that he took complete control of his digital legacy. He turned his mind to what would be left behind on the internet when he was gone, put in significant effort, and made something that he seemed to be quite proud of. 

One lesson that we can all take from Martin Manley’s life is that we should take some time to think about what we will leave behind when we are gone, online or otherwise. This does not necessarily have to take the form of a memorial website. It may be as simple as keeping a record of passwords and logins so that those left behind can manage a deceased individual’s digital assets. It may take the form of a set of directions to an executor or loved one about what should be done with one’s digital assets on death. Whatever decisions a person makes about his or her digital legacy, the important thing is that they are worth taking the time to make. 

Josh Eisen

08 Aug

A Fortune Fit For a King

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Indiana Jones, a character which has come to define its principal actor, Harrison Ford, has entertained millions of viewers with his quest for truth and the fortune and glory that result from those pursuits.  Recently, however, a 21 year estate battle in the northern Indian city of Chandigarh has ended a narrative that even Indiana Jones would have difficultly uncovering.

The tale begins many years ago with the death of a maharaja in the tiny kingdom of Faridkot, in western Punjab, and the ascension of his infant son, at age 3, who was destined to be the last maharaja of that kingdom. This boy, Maharaja Sir Harinder Singh Brar, grew to manhood and expanded upon the great wealth that accompanied his title. However, in 1981, the maharaja’s only son died in a road accident. This tragedy sent the maharaja into a tale-spin of deep depression from which he could not recover, only ending in his death in 1989 (which coincided with Indiana Jones’ Last Crusade).

At his death, the maharaja was survived by his widow and three daughters. The vast fortune left behind is estimated to be between three and four billion dollars and includes a 350 year old fort in the heart of New Delhi, a mountain retreat in the foothills of the Himalayas, a 200 acre aerodrome, 18 vintage cars, and €128 million in gold jewelry studded with diamonds, rubies and emeralds. While his heirs anticipated that the maharaja died intestate, shortly after his death a Last Will and Testament surfaced purported to place the maharaja’s fortune into a trust, naming all of the maharaja’s servants, officials and lawyers as the trustees and the beneficiaries. Two of his daughters were also named officers under the trust and were paid salaries of between €12 and €15 per month. His mother, widow and oldest daughter were left out entirely (although this part would be left on the cutting room floor in the movie version, I should advise that his daughters were not destitute, having married into rich families, but nonetheless, a tragic story).

And so began the 21 year quest by the maharaja’s three daughters to prove the Will was a fake (although one died in 2002). Finally, the court concluded that the sisters had been cheated out of their inheritance by the maharaja’s staff in collusion with local lawyers who forged a Will several years before he died.    

Challenging a Will on the principal ground of fraud is much like alleging fraud in a commercial dispute. Fraud is rarely easy to prove and the cost consequences of making such an allegation can be devastating. However, where your quest for truth is noble and the potential fortune is worth the risk, your pursuit of justice is all the more satisfying. Just ask the newest 80 year old billionaires.

Jonathon Kappy

  

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