What the right-to-die ruling means for POAs

Clients should state their views on physician-assisted suicide in their estate planning documents, says Fasken Martineau lawyer Corina Weigl.

“[We] include it in our powers of attorney today in anticipation of where the law may be 10 years from now,” she says, explaining the law may later allow for physician-assisted death decisions to be made by power of attorney, based on the patient’s explicit wishes.

Read: Advisors must help clients plan their deaths

Earlier this month, the Supreme Court of Canada legalized physician-assisted suicide for mentally capable adults with severe medical conditions. The court gave lawmakers 12 months to draft associated legislation before the existing ban is repealed.

The court decision says the choice to die can’t be delegated to a power of attorney or guardian. “That would be more akin to euthanasia, which is not what the Supreme Court of Canada was talking about,” says Jan Goddard, a lawyer specializing in elder law at Goddard Gamage Stephens. She doesn’t think the law will ever delegate physician-assisted death decisions.

Talking to clients

The ruling says people can only decide to commit suicide after they’ve fallen ill, so Goddard and Weigl say there’s little financial advisors can do to plan for that circumstance.

But Rhonda Latreille, CEO of Age-Friendly Business, says advisors should be talking to clients about end-of-life wishes regardless.

Great advisors help “a client define what constitutes a good life, a good death and a good legacy, and then help the client put in place the tools and processes” to achieve those objectives, she says. She sees the forthcoming legislation as another tool.

Read: The truth about end-of-life care

Questions advisors can ask clients include:

• What does leading a good life mean to you?
• How do you define a good death?
• What would the last day of your life look like if you could plan for it today?
• How would you like your family to be taken care of after you’re gone?
• What activities do you enjoy most? How might your healthcare decisions change if you could no longer do those activities?

Advisors can also correct misconceptions about end-of-life planning, Latreille says. “For instance, many people do not have Advanced Care Directives because they assume they’re the same as Do Not Resuscitate orders,” and they’re not. Advanced Care Directives cover what will happen in case of a terminal illness, irreversible medical condition and dementia, while DNRs are specific to cardiopulmonary resuscitation.

Read: Educate clients about advanced care directives

Dying with Dignity Canada, a non-profit that advocates for end-of-life options, has created free Advance Care Planning Kits for each province. These kits can help clients prepare their Advanced Care Directives and their POAs for personal care. The kits also include sample DNR forms.

Capacity becomes more important

If governments decide not to legislate on this issue, the rules for physician-assisted death would be like those for other regulated medical procedures, says Grace Pastine, the lead lawyer for the families who brought the case before the Supreme Court. They would require a person to be capable in order to make a decision.

In Ontario, healthcare capacity is solely about the patient’s ability to understand the consequences of undertaking or refusing a particular medical procedure. It doesn’t matter if he can no longer feed himself or make financial decisions, says the College of Physicians and Surgeons of Ontario. Doctors assess capacity based on the patient’s medical history and behaviour.

Read: Discuss final expenses before it’s too late

Definitions of capacity vary from province to province, but are similar in spirit, says Goddard.

“If I’m the treating physician and I think you don’t have the capacity, I have to tell you so, and you actually have the right to challenge my opinion before the Consent and Capacity Board,” she adds.

What might happen

The Supreme Court noted that physician-assisted suicide is legal in some countries and U.S. states, and that it’s usually not abused. Goddard says that based on physician-assisted deaths in other countries, we won’t see many in Canada. “We’re probably talking a few hundred cases a year,” she says.

Goddard does single out a question for the insurance industry: what to do with the suicide clauses in insurance policies. Many policies are void if the policyholder commits suicide soon after purchasing insurance.

Read: How to discuss PoA for personal care

Federal Justice Minister Peter MacKay said the government would review the decision. At least six private member’s bills aimed at reforming right-to-die legislation have been defeated by parliamentarians since 1993 — most recently in April 2010.

Says Goddard, “Everybody is waiting to see how the federal government and our provinces choose to legislate.”

Melissa Shin

Melissa is the editorial director of Advisor.ca and leads Newcom Media Inc.’s group of financial publications. She has been with the team since 2011 and been recognized by PMAC and CFA Society Toronto for her reporting. Reach her at mshin@newcom.ca. You may also call or text 416-847-8038 to provide a confidential tip.