Tag: Living Wills
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In December of 1963, as America mourned the assignation of John F. Kennedy, Birch Bayh , the young United States Senator from Terre Haute, Indiana, introduced an amendment to the Constitution aimed at curing its dangerously vague language on vice-presidential succession and presidential disability. One of the many contingencies it aimed to address was, what happens if the President is unable to discharge the powers and duties of his office?
With the recent hospitalization of the current President after his diagnosis of Covid-19, much of the water cooler buzz, the nightly news, and social media was atwitter with questions surrounding the 25th and whether it would be evoked.
Such declarations are rare, but not uncommon. Presidents Reagan and George H.W. Bush each transferred power using 25 during pre-planned surgeries. But while we do not know, as of yet, if the White House counsel drafted language affording the transfer of power to the Vice-President (albeit temporarily) were the President’s health to take a turn, it did get us thinking that such a document could be akin to the most important Power of Attorney in the world.
In Ontario, the subject of a living will often comes up in similar circumstances. But the term “living will” is not used in any formal way. We have written about living wills here in the past. A more common term is advance directive: a document that clearly outlines your treatment and personal care wishes.
But whether you call it a living will or advance directive, they are not the same as a Power of Attorney (POA): a legal document in which you name a specific person to make decisions on your behalf. While an advance directive can form part of your POA for personal care, so your attorney is aware of your wishes, it does not carry the same weight with the court.
Finally, while we may not know whether the president executed a document under the 25th Amendment or if one was even drafted, it is a good reminder that even if our own illness or temporary absence does not pose a national security risk, outlining our wishes about care is always a capital idea.
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Ian Hull and Daniel Enright
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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