The issue of medically assisted dying should be in your estate
planning in the event you can’t make decisions on your own, or that your loved ones can’t!
Dr. Michael Gordon has often written and spoken on this. Here is another piece to consider.
Some people leave this earth with a sense of humour. I think of
Canadian lawyer and successful businessman Charles Vance Miller, who
died in 1926 and held a contest in his last will and testament where a
portion of his estate would be left to the Toronto woman who, in the
10 years following his death, gave birth to the most children. It
became known as the “Great Stork Derby.” Turns out that four women
shared the bequest (each receiving the equivalent in today’s dollars
of $2.1-million), each giving birth to nine children in 10 years.
While dying with humour is not often talked about, the more serious
and controversial issue of “dying with dignity” has been hot in the
press. The whole issue of medically assisted death is one that many
would like to ignore. The fact is, however, the issue should work its
way into your estate planning, particularly in the event you can’t
make decisions on your own. It brings to mind the story of a family
and a court decision from just four years ago.
The story
Mrs. F was a widow who gradually developed dementia. She was visiting
Florida in 2012 when she apparently inhaled some food that required
emergency help. By the time help arrived, she had experienced brain
anoxia and didn’t recover significant consciousness. A feeding tube
was inserted at the hospital in Florida before she was transferred
back to Toronto to a hospital there.
Soon after she arrived in Toronto, her family produced a power of
attorney for personal care prepared 10 years earlier, that included
the following wording: “I hereby instruct that if there is no
reasonable expectation of my recovery from physical or mental
disability, I be allowed to die and not be kept alive by artificial or
heroic measures. I do, however, instruct that medication be mercifully
administered to me to alleviate suffering even though this may shorten
my remaining life.”
It went on to read: “I authorize and direct my
attorneys for personal care to make on my behalf all decisions with
respect to my personal care if I am mentally incapable of making such
decisions myself.” Her attorneys for personal care were her three
children.
Given the wording of the power of attorney, Mrs. F’s doctor, on behalf
of the hospital, requested that they allow her to die. The matter was
taken to the Consent and Capacity Board (CCB), an independent body in
Ontario created under the Health Care Consent Act. On June 14, 2012,
the CCB supported the doctor’s request to end Mrs. F’s life because
they took her words in the power of attorney for personal care to be
directive, and not just precatory. But her children wanted differently
and took the matter to court. (As an aside, I have a problem with
others even trying to force a decision like this without simply
acquiescing to the wishes of the substitute decision makers – the
children who held power of attorney in this case – but I digress.)
The decision
On April 3, 2013, the Ontario Superior Court sided with the children.
Witnesses came forward, including rabbis, attesting to Mrs. F’s
Orthodox Jewish faith and life practices. Removing the feeding tube
would have been contrary to the tenets of Judaism that they believe
would have been important to her and which she embodied in all aspects
of her life.
After examining all the evidence, the court found that Mrs. F likely
did not understand or appreciate the words “artificial and heroic
measures” in her power of attorney for personal care. She likely did
not understand all the implications of what she signed. Her life-long
faith was accepted as an important factor that was not sufficiently
taken into account by the CCB. There was no evidence that she
requested an end-of-life clause (her lawyer had no notes of specific
discussions and simply discussed general issues related to powers of
attorney).
The learning
The issue of medically assisted dying should be in your estate
planning in the event you can’t make decisions on your own
