Tag: Living Wills
A recent decision arising from the British Columbia Court of Appeal addresses the ability of an elderly Alzheimer’s patient to provide consent to personal care decisions without speaking.
Bentley v. Maplewood Seniors Care Society involves a petition brought by Margaret Bentley’s daughter and husband to prevent Maplewood, the care facility in which Margaret has been a patient since 2009, to cease providing food and water to Margaret.
At the time of the hearing, Margaret was an 83-year-old woman who had been afflicted with Alzheimer’s Disease since at least 1999. Consequently, Margaret would sit “…slumped over in a chair or in bed most of the time, with eyes closed. She has not spoken since 2010 and does not appear to recognize anyone”.
Margaret’s family relied on evidence from as far back as 1991, including a living will (otherwise referred to as an advance directive), expressing Margaret’s wishes that, amongst other things, if there was no reasonable expectation of recovery from extreme physical or mental disability, she be allowed to die (and not be provided with nourishment or liquids). Interestingly, Margaret was a nurse in earlier years, who had experience with patients in ‘vegetative’ states due to Alzheimer’s Disease. Accordingly, one may think that these decisions were well thought out.
Maplewood argued that Margaret opened her mouth to accept nourishment or liquid. Should Margaret keep her mouth closed, as she did when at the dentist, or keep her teeth clenched, they would respect her decision and not attempt to feed her by means of a feeding tube or any other medical means.
The lower Court Judge considered various evidence from general practitioners, finding it significant that Margaret “…indicates preferences for certain flavours and eats different amounts at different times…”, and that the petitioners (family), had not established that Margaret’s behaviour was a mere reflex.
Importantly, the family did not seek to have Margaret declared incapable. Therefore, the Court found that Margaret consented to being given food and water by holding a spoon or glass to her lips. This did not amount to prodding and prompting. Since Maplewood did not go further when Margaret kept her mouth closed, their actions were within the scope of Margaret’s consent.
A “Living Will” or “Advance Directive” is a document that indicates the grantor’s preferences with respect to health conditions and treatment, including the level of medical intervention. It is a guide for the person who must communicate with physicians and make health care decisions in the event the patient is not able to do so him or herself. It is different from a Power of Attorney for Personal Care, which is a document naming a specific person to act on your behalf.
An Advance Directive can be very detailed and tailored to the individual’s personal circumstances. For example, on the University of Toronto Centre for Bioethics website you can find information on a Cancer Specific Advance Directive.
Given the complex medical nature, it may well be that the specifics of such a directive lay more comfortably in the bailiwick of the health care professional rather than the legal professional. Ideally, the Power of Attorney for Personal Care should include a detailed health care directive. This approach offers the assurance that the grantor’s wishes are taken into account without the wording in the Advance Directive inadvertently voiding his or her Power of Attorney for Personal Care.
A Power of Attorney for Personal Care may also include conditions or restrictions other than Advance Directives such as limiting the attorney’s ability to act until a confirmation of incapacity has been obtained, and determining the method of assessing capacity.
If a person becomes incapable of making personal care decisions and has no Guardian of the Person or Power of Attorney conferring the authority to make health care decisions, the Health Care Consent Act of Ontario provides a statutory hierarchy of persons who can provide consent on the incapable person’s behalf in descending order of authority as follows:
- Spouse or partner
- Child or parent
- Brother or sister
- Any other relative
Therefore, it is especially important to prepare a Power of Attorney for Personal Care if you would not want your spouse, child or parent to make health care decisions on your behalf should you become unable to make them yourself.
For further information on this topic, see Q & A on Powers of Attorney and Living Wills by the Office of the Public Guardian and Trustee for Ontario, or this book about Living Wills by M. Dianne Godkin.
Thanks for reading.
Sharon Davis – Click here for more information on Sharon Davis.