End Of Life Health Care Planning - Be Careful What You Wish For

Here is one statistic you can rely on: 100% of Canadians will die. Benjamin Franklin said it first, "In this world nothing can be said to be certain, except death and taxes." Yet more than 80% of Canadians have never considered the need to plan ahead for decisions about their health care at the time of their death. The legal rules about "health care decision making" are complex, and have been significantly affected by recent court cases. No matter the size of their estate, wealthy or modest, Canadians are becoming more concerned about the need for not only a good life, but also a good death.

Two of the most important recent cases are: a decision by the Supreme Court of Canada about physician assisted death in Carter v. Canada (Attorney General), 2015 SCC 5; and a decision about the refusal of end of life care by the BC Court of Appeal in Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91.

The Basics of an Advance Care Plan

The Court of Appeal in Bentley set out the need quite clearly:

"...persons who wish to make provisions for their care and decision-making in their declining years should not only record their wishes clearly, but also obtain legal advice as to what exactly can be accomplished by so-called "living wills", representation agreements, advance directives and related appointments." [at 6]

The tools we use in British Columbia to make advance care plans include:

A "living will" - this document records your preferences about future care. Although there is no reference to living wills in BC legislation, it is clear that wishes expressed about your future health care while you are capable are legally binding on anyone who makes decisions for you when you have become incapable.

A "representation agreement" - this document allows you to identify a person as your decision maker for a time in the future when you may become incapable. It is often thought of as a power of attorney for health care matters.

An "advance directive" - this document is a living will that has the ability to replace a substitute decision maker. If the proper wording and process has been used, then this document may become your legally binding consent to the treatment described in it. In that case, there would be no need, and in fact no ability, to involve another person to make decisions for you.

The court also referred to "related appointments." This covers the default system that applies if you have not made any of the above documents. The Health Care...