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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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.
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Sharon Davis – Click here for more information on Sharon Davis.