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,
Other blog posts that may be of interest:
For 50 days, two-year old Israel Stinson occupied a hospital bed in California, where a ventilator forced air into his lungs, keeping oxygen flowing throughout his tiny body. Israel is brain dead, and has been since April 2, 2016. Any diagnosis of brain death is based on three criteria: i) absence of brainstem reflexes (e.g. pupil reaction to light, gag reflex); ii) coma (as evidenced by zero responsiveness); and iii) failure of an apnea test. In Israel’s case, such a clinical and definitive determination was made by no fewer than three different physicians at two different hospitals. Mechanical ventilation did not give Israel life, nor is it keeping him alive. It is merely replacing the function of his lungs, which can no longer function on their own. His heart continues to beat, not because he is alive, but because heart function is not entirely dependent on the brain. Brain death is death; the term simply describes how the death was determined.
California law allows a hospital to disconnect mechanical support in the event of brain death, however Israel’s family waged a legal battle in the United States District Court to block his hospital from doing just that. Court documents indicate that “Plaintiffs are Christians with firm religious beliefs that as long as the heart is beating, Israel is alive.” On May 13th, the court rejected the lawsuit to keep Israel on indefinite “life support” but upheld a temporary restraining order keeping the ventilator in place, thus allowing the family time to appeal. An appeal was filed with the 9th U.S. Circuit Court of Appeals, but that appeal was essentially rendered moot when this past weekend, the family had Israel transferred to another medical facility outside of the United States. Citing privacy, the family’s attorney would not disclose the name of the hospital or its location. Israel’s body remains on a ventilator.
Hard data on the frequency of brain death disputes is evasive, particularly since there is great disparity in media coverage from case to case. Some cases, like that of 13-year old Jahi McMath, have received enough media attention as to have firmly galvanized the public. Thaddeus Pope, a law professor at Mitchell Hamline School of Law, refers to this as the Jahi McMath shadow effect. In an interview last week, Pope stated, “It’s casting a shadow; it has had some impact. I don’t know how to quantify it, but based on my discussion with physicians at a number of hospitals, it does seem there’s an uptick.” Personal injury attorney Chris Dolan, for example, has worked on seven brain death disputes to date, including that of Jahi McMath. In Jahi’s case, the law was leveraged to allow her family to have their daughter transferred to New Jersey where her body remains on a ventilator, more than two years after being declared brain dead. This shift in public perception of the concept of brain death concerns Arthur Caplan, director of the Division of Medical Ethics at New York University School of Medicine:
“It becomes important for the medical field to be responsive to these cases. Not heartless or cruel, but nonetheless try to explain what the concept is, how it’s tested.”
Many doctors consider efforts to ventilate a dead body in the face of all medical evidence to be wrong and unethical. It is indeed telling that not a single hospital facility in the United States would agree to accept Israel’s body after the diagnosis of brain death.
Meanwhile, in a statement Sunday, Israel’s mother Jonee Fonseca declared, “Victory!”.
At present, there is no legal framework in Ontario governing the storage of asthma inhalers within schools. The absence of such a framework shifts the decision-making into the hands of the individual school administrators and/or school boards. What has evolved as a result of this legal vacuum is a patchwork of asthma management plans. Many of these plans lump asthma inhalers with other medications (incl. antibiotics, medications used to treat symptoms of ADHD, etc.), thus requiring them to be locked in the principal’s office. This inappropriate one-size-fits-all approach to medication storage in schools is a textbook example of ‘rulitis’: ‘a slavish adherence to rules and regulations that goes beyond common sense’ (with credit to André Marin, Ontario Ombudsman, for coining that apt phrase).
Within schools, the placement and storage of rescue inhalers in a secure, centralized location is problematic for a number of well-documented reasons, including: i) Storage of inhalers away from the person precludes the immediate use of the medication at the onset of symptoms. Centralized storage of asthma inhalers flies in the face of the fact that an inhaler delivers a dose of rescue medication, and thus should be considered a life-saving measure, not unlike an epinephrine auto-injector. It is impossible to overstate the differences in outcomes between immediate use of an inhaler and delayed use after symptoms have progressed; and ii) Students are apprehensive about asking for help accessing a centrally-stored inhaler due to embarrassment around being considered ‘medically vulnerable’ and the fear of being deemed disruptive by staff and/or peers.
Sandra Gibbons and MPP Jeff Yurek (Elgin-Middlesex-London) have been collaborating on a private members’ bill which, if passed, will force every school board in Ontario to implement a comprehensive asthma policy, each of which must also permit a student to carry his or her own asthma medication on their person. On October 9, 2012, Gibbons’ son Ryan died after suffering a severe asthma attack during recess at his school in Straffordville. Ryan’s attack evolved quickly, his classmates carried him to the principal’s office where his inhaler was kept, but Ryan was already unconscious. Ryan’s school, with tragic consequences, had a zero tolerance policy against inhalers, and had gone so far as to confiscate spare inhalers that he had brought to school just in case he suffered from an attack.
In contrast to Ontario, the U.S. has three prongs of federal legislation in place allowing students to carry inhalers on their person: the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act. Approximately 6 million American children have asthma, and 200 of them die each year as a result of an asthma attack. The federal legislation is in place as much to save those 200 lives as it is to reduce outpatient visits to doctors and hospital E.R. visits (~4.6 million and 700,000 visits per yr, respectively). Across Canada, over half a million children are affected by asthma and approximately 20 children die each year as the result of an asthma attack. The Lung Association of Ontario estimates that 1 in 5 children have asthma in this province.
This week’s media coverage of Yurek’s proposed private member’s bill (“Ryan’s Law") has raised corollary questions regarding epinephrine auto-injectors (EpiPens) at schools, since they also deliver a rescue medication. Just last month, the U.S. passed the School Access to Emergency Epinephrine Law which encourages schools to carry ‘stock’ epinephrine (i.e. an undesignated supply). Encouragement is in the form of financial incentives; schools that carry stock supplies will get preference for receiving federal grant monies. While Sabrina’s Law requires all school boards in Ontario to establish an anaphylactic policy, there is currently no provision in the province to allow schools to stock an undesignated supply of auto-injectors.
Ryan’s Law passed second reading with all-party support at Queen’s Park on December 5, 2013 and will return for third reading some time in the spring of 2014.
Jenn Hartman, Medico-Legal Consultant
* photo of Ryan Gibbons, from Tillsonburg News
Legal aside: It should be noted that both Sabrina’s Law and Ryan’s Law (as it has been tabled) include ‘Good Samaritan’ language which provides immunity from lawsuits for ‘any act done in good faith’ in response to an anaphylactic reaction or an asthma attack, respectively.
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
Social Media is not a fad and is fundamentally changing the ways we interact and communicate with others. Two of the more popular social networking websites, Twitter and Facebook, recently implemented policies that set out guidelines regarding a user’s account once they have died.
Under Twitter’s policy, a person can either request that the deceased user’s account be removed entirely or receive an archive of all the deceased user’s tweets offline once they have provided Twitter with the following information:
1. Your full name, contact information (including e-mail address), and your relationship to the deceased user;
2. The username of the Twitter account, or a link to the profile page of the Twitter account.
3. A link to a public obituary or news article.
By comparison, Facebook provides two options: either removing the deceased’s account, or "memorializing" it.
Memorializing a person’s account “means the account lives on in Facebook’s system, and other Facebook members can interact with the deceased member’s wall. What’s interesting about what Facebook put into place, compared to Twitter, is that there’s still a great deal of emphasis put on privacy and what can be done with the information that user has posted to the service. For instance, only that user’s friends can still visit the profile or find it in Facebook’s public search tool. And Facebook goes so far as to remove all status updates and contact information.”
It is hard to imagine that Facebook and Twitter will remain an important part of our lives many years from now, but Facebook has grown from 300 million to 500 million users in less than a year, with few signs of that slowing down. This is an indication that “policies about a user’s death can end up being just as important as those you agree to when you first sign up.”
Thank you for reading, and have a great day.
Rick Bickhram – Click here for more information on Rick Bickhram.
The Svalbard Global Seed Vault (SGSV), also known as the Doomsday Vault, is a secure seedbank located on a Norwegian island far within the Arctic Circle. The purpose of the SGSV is ‘to provide insurance against both incremental and catastrophic loss of crop diversity held in traditional seed banks around the world.’
The safety of the world’s 1,400 crop diversity collections has been a concern for many years due to risks including poor agricultural management, equipment failures, war, underfunding and natural disasters. The SGSV provides a duplication of seed samples stored in genebanks worldwide, acting as a sort of agricultural ‘spare tire’, if you will.
The SGSV was entirely funded and built by the Norwegian government and took its first delivery of seeds just over a year ago. The vault is situated 390 feet inside ‘Platåberget’, a sandstone mountain on Spitsbergen Island chosen based on its tectonic inactivity. Inside the vault, the seeds are sealed in specially designed four-ply foil packages, which are then placed inside sealed boxes and stored on shelves inside storage rooms. Refrigeration units (powered by locally mined coal) cool the seeds to –18 degrees Celsius, and in the event of equipment failure, it would take weeks for the temperature to even reach that of the surrounding sandstone. The area’s natural permafrost would further prevent the samples from thawing. Even in worst-case climate change modeling, the vault rooms will remain naturally frozen for up to 200 years. Estimates suggest that the SGSV has the ability to conserve a capacity of over 2 billion seeds for hundreds, if not thousands of years.
Now, how’s that for global estate planning?
Jennifer Hartman, guest blogger
This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p.175.