Tag: physician assisted death

30 Jan

What Impact Might MAID Have on a Will Challenge?

Nick Esterbauer Capacity, Estate Litigation, Health / Medical, Wills Tags: , , , , , , , , , , 0 Comments

In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area.  As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?

Our regular readers will already be well aware that capacity is task, time, and situation specific.

Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment.  Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.

The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow.  While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different.  Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.

Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy.  While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.

Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.

Thank you for reading,

Nick Esterbauer

27 Jan

Recent Developments in MAID

Nick Esterbauer Capacity, Elder Law, Ethical Issues, Health / Medical, In the News Tags: , , , , , , 0 Comments

Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.

Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history.  Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.

As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria.  Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered.  Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.

In some parts of the country, MAID is already accessed at significant levels.  In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.

Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.

Thank you for reading,

Nick Esterbauer

 

Other blog posts that may be of interest:

01 Mar

Impact of Physician-Assisted Death on Estate and Insurance Planning

Nick Esterbauer Beneficiary Designations, Elder Law Insurance Issues, Estate Planning, Ethical Issues, Health / Medical, RRSPs/Insurance Policies Tags: , , , , , , , , , , , , 0 Comments

For many Canadians, one or more life insurance policies represent an important component of an estate plan.  If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.

The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide.  Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).

With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance.  The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.

As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old.  Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families.  This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:

…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.

The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide.  They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.

Thank you for reading,

Nick Esterbauer

 

Other blog posts that may be of interest:

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