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Living Will Ontario

Ontario living Will lawyer Michael Carabash

Living Will Ontario

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a living Will or advance care directive, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario lawyers registered on the website who can answer your questions or help you.

What is a Living Will?

In Ontario, the term “Living Will” refers to a document where a person states their final wishes concerning their medical treatment when they can no longer communicate those wishes. Some people say that, when this state occurs (e.g. no oral communication, no gesturing, etc.), they want to be taken off of life support (artificial machines keeping them alive) and allowed to die in a natural and dignified manner and only receive medication to deal with pain. Other people say that they want to be kept alive using all possible measures and even resuscitated (or attempted to be) after they die. These documents are also called Advance Directives. Keep in mind that a “Living Will” only has relevance while a person is alive (unlike a Last Will and Testament, which takes effect after a person passes away).

Is a “Living Will” a “Last Will and Testament”?

A Living Will is NOT a Last Will and Testament.

A Living Will, as discussed above, is merely a directive you give concerning your medical treatment when you can no longer communicate your final wishes.

A Will (also referred to as a Last Will and Testament) is a legal document that provides instructions as to how your remaining assets and liabilities are to be dealt with. It also provides instructions as to who will be responsible for administering your final wishes (known as the Estate Trustee) and identifying who your beneficiaries will be. Finally, a Will can leave instructions as to who Custodians and Guardians will be in the case of minor or disabled children or dependents left behind.

When you die in Ontario (and elsewhere), your assets are pooled together into something called an estate. An Estate Trustee is appointed in the Will (and a substitute is usually appointed in case the primary estate trustee is unwilling or unable to perform his or her duties) and must administer the Will by paying out liabilities (e.g. taxes owed, funeral expenses, creditors, etc.), managing remaining assets (e.g. selling them, gifting them, investing them, etc.), and distributing the residue of the estate (i.e. the remaining funds after everything else is taken care of) to the beneficiaries designated under the Will.

Is a “Living Will” a “Power of Attorney for Personal Care”?

A Living Will is NOT necessarily the same things as a Power of Attorney for Personal Care. That said, you can include the terms of a Living Will into a Power of Attorney for Personal Care. Powers of Attorney for Personal Care are used by persons to appoint someone (called an “Attorney”, but not necessarily a lawyer) to make health care decisions on their behalf when they become mentally incapacitated.

Is a “Living Will” a Valid and Enforceable Document?

So are Living Wills in Ontario valid and enforceable here? In other words, by having such a document – which talks about your wishes concerning your medical treatment when you can no longer communicate – is it possible to enforce it through the courts in case a dispute arises?

It’s an interesting issue. At first glance, some might say ‘no’. There is no Ontario statute that even mentions Living Wills or Advance Directives – like there are in other provinces. For example, in British Columbia, under the Representation Agreement Act, you can appoint someone to make decisions on your behalf (when you can no longer do so) to give or refuse consent to specified kinds of health care, including life-supporting care or treatment: sections 9(1)(b) and (c). In Alberta, the Personal Directives Act allows people to make personal directives respecting any person matter: section 7(1). In Saskatchewan, The Health Care Directives and Substitute Health Care Decision Makers Act provides that, where a person has made a health care directive concerning future treatment for specific circumstances, that health care decision will be deemed to have the same effect as if it were made by that person (who at that point would be mentally incapable of making that decision). In Nova Scotia, the Medical Consent Act gives a person the ability to appoint another person to give consent or directions respecting the medical treatment of the person giving the authorization. So there ARE statutes that recognize Living Wills and Advance Directives and which presumably create rights, obligations, etc. in respect thereof.

But in Ontario, the Substitute Decisions Act (the legislation that comes closest to dealing with Living Wills) does not talk about medical treatment, personal directives, Living Wills, refusal to accept medical treatment, etc. Instead, that Act allows a person to make a Power of Attorney for Personal Care. This allows a person to appoint someone to make personal care decisions when they can no longer do so. But what does “personal care” include? It includes health care, nutrition, shelter, clothing, hygiene, or safety. In light of this, could a Living Will or Advance Directive made in Ontario be included in a Power of Attorney for Personal Care? Sure it could. But are those provisions – regardless of whether they are made in a separate document called a Living Will or a Power of Attorney for Personal Care – enforceable?

Actually, it could depend on the context! There are two (although somewhat dated) Ontario Court of Appeal cases that have actually found that making advance directives (orally or in writing) can actually override legislation and be used to successfully sue doctors!

In Fleming v. Reid, [1991] 4 O.R. (3d) 74, the Ontario Court of Appeal struck down provisions of the Mental Health Act that allowed a review board to impose neuroleptic drug treatment on schizophrenic patients who had previously protested against such treatment. Those patients, when they were competent, refused to take those drugs despite their doctor’s view that taking them was in their best interests. When those patients became incapable of making decisions on their behalf, the Official Guardian stepped in as their substitute decision maker and also refused to consent to the use of neuroleptic drugs. But the Mental Health Act said that the review board (the body that makes the decisions) did not have to consider the prior capable wishes of patients in determining what was in their fair interests. The Court of Appeal disagreed and found the review board’s powers to be unconstitutional. The Court of Appeal upheld the patient’s prior views concerning their health treatment and struck down those provisions of the Mental Health Act that infringed on their section 7 Charter rights. Importantly, the Court stated:

33 The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment – any treatment – is to be administered.

34 A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard such advance instructions, even in an emergency. The patient’s right to forego treatment, in the absence of some overriding societal interest, is paramount to the doctor’s obligation to provide medical care. This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient’s life or health, and regardless of how ill-advised the patient’s decision may appear to others.

These statements show that a Living Will or Advance Directive can actually trump legislation which says otherwise under section 7 of the Charter.

Furthermore, in Malette v. Shulman, (1987), 47 D.L.R. (4th) 18, the Ontario Court of Appeal found that a doctor who provided medical treatment to an incapable patient (who had expressly refused such treatment while capable of doing so) had committed assault and battery and should pay damages. The patient was a Jehovah’s Witness and she carried a card that said she would refuse to accept any form of blood products in the event of an accident. After a car accident, she was taken to the hospital. She was semi-conscious and in bad condition. The hospital staff and the doctor discovered the card. The patient’s daughter also confirmed her mother’s intentions not to receive blood products. Nevertheless, the doctor administered a blood transfusion which saved the patient’s life. She survived and sued the doctor. The Court of Appeal found the doctor liable for damages and stated:

24… A doctor is not free to disregard a patient’s advance instructions any more than he would be free to disregard instructions given at the time of the emergency. The law does not prohibit a patient from withholding consent to emergency medical treatment nor does the law prohibit a doctor from following his patient’s instructions. While the law may disregard the absence of consent in limited emergency circumstances, it otherwise supports the right of competent adults to make decisions concerning their own health care by imposing civil liability on those who perform medical treatment without consent.

So, as you can see, in the context of a statute that violates the Charter (such as the Mental Health Act did in Fleming v. Reid) or in the context of a civil case for damages based on assault and battery (such as a doctor providing blood transfusions in Malette v. Shulman), it appears that Living Wills CAN BE ENFORCEABLE!

What is the basic structure of a Living Will?
In what is to follow, I’ll reviewing some of the basic clauses you can find in a typical Ontario Living Will:

Introductory Clause
First, the grantor (the party making the Living Will) and the nature of the document (i.e. it is a Living Will) are identified. The date on which the Living Will is made is typically included here too.

Revoke Previous Living Wills
Next, you’ll need to revoke any previous Living Wills you may have made, even if you don’t recall ever having made one (it’s just good practice).

Appoint an Agent
Next, you’ll need to identify your agent. Use their full legal name and even adding an identifier (e.g. my son, my spouse, etc.) may help. You can also consider appointing more than one person as your agent. This may be to share or divide responsibilities and to make sure there are sufficient checks and balances on decision-making; at the same time, it may overly complicate things and cause headache (diverging opinions coupled with joint decision-making authority may cause delays and turmoil!).

Appoint a Substitute Agent
For whatever reason, in case the individual you appointed is incapable (e.g. vacation, sickness, death) or unwilling (e.g. through retirement) to act as your agent at the time they need to, you should appoint a substitute agent.

Indemnification
Sometimes, your agent or substitute agent may not want to act as such unless you indemnify them for exercising their powers under the Living Will. An indemnification is you saying that you agree to pay for damages that result from X. Here, “X” could be their good faith exercise of any power or discretion granted under the Living Will. Remember: you can remove this clause if you’re not comfortable with it. Alternatively, you can play with the language (or get a lawyer to do that) to reflect your wishes.

When Effective
This part of your Living Will deals with when it becomes effective. It may say something along the lines of: this Living Will becomes effective when I can no longer communicate my final wishes, I am suffering from some sickness / disease / condition, and there is no reasonable expectation that I will recover. Remember: you can always customize this to reflect your final wishes as to when you want the Living Will to be effective.

My Final Wishes
Once you’ve come to this point, you’ve got to make a real decision: what exactly do you want your final wishes to be concerning the medical attention you receive when the Living Will becomes effective? For some people, they want to be removed from life support, receiving medication only to control pain and not resuscitated when they die. For others, they want to be kept alive for as long as possible, given medication to control pain and then resuscitated in case they die. It’s completely up to you.

Powers Given To Agent
The Living Will should outline the powers and restrictions on powers which your Agent will have in carrying out your living Will. Here, you can specify for example, that the agent has the power to sign releases, review and disclose medical records, or consent or refuse or withdraw consent to any form of health care.

Declaration
You should acknowledge that you are over 16 years old, of sound mind, and that the Living Will expresses your final wishes before signing (in blue pen instead of black). Also, it’s good practice to initial every page on the bottom right hand corner. Finally, it’s not a legal requirement to have a witness, although it is good practice to have one.

For more information about Living Wills and Power of Attorneys in Ontario, check out these great government resources:

  1. Power of Attorney and “Living Wills, Questions and Answers, Ontario, The Office of the Public Guardian and Trustee (Reprinted in 2009); and
  2. Power of Attorney, Booklet, Ministry of the Attorney General

FYI, in case you’re looking for a Living Will in Ontario, then look no further:

Living Will (Ontario)

This document can be used by a person to communicate their final wishes concerning the medical treatment they would like to receive when they are no longer able to communicate. This is NOT a WILL or a POWER OF ATTORNEY FOR PERSONAL CARE (although the terms of one’s Living Will can be incorporated into one’s Power of Attorney for Personal Care). Here’s the sample Video Guide that comes with this Living Will (Ontario):

Remember: if you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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