Living Wills (Expression of Wishes)
by Del Elgersma
“Living wills” have been legally valid in BC since 2000. A living will is a written statement that expresses your wishes regarding medical treatment and personal care in case you are unable to express your wishes at the relevant time. The term “living will” is a legal term in some US states but not in Canada, and is more correctly referred to as an “Expression of Wishes” or “Health Care Directive”.
In an Expression of Wishes you can set out the treatments that should or should not be given in specified circumstances. For example, you may direct that “heroic measures”, such as cardiopulmonary resuscitation (CPR), should not be used to prolong life if you suffer from a severe irreversible condition. You may direct that medication be administered to alleviate suffering in those circumstances.
An Expression of Wishes can prevent conflict and guilt among family members. If family members ask the doctors to do “everything” to keep a loved one alive and that person dies, the family may feel guilt for putting the person through needless tests and treatments. On the other hand, if they let their loved one “die with dignity”, they may feel later that they should have done more.
Conflict can also arise if family members cannot agree. Children who have been out of contact for years may return and want the doctors to do “everything” to try to bring a parent back so they can make peace. Other family members who remained in close contact are more likely to accept the person’s death, and want only palliative care for the parent. Further complications can arise when children from divorced marriages resent stepparents or common law spouses from making decisions. These conflicts can leave lasting bitterness.
If you have stated your wishes clearly in an Expression of Wishes, your doctor and family won’t have to second-guess what kind of treatment you would want. You will receive the treatment you want and your family will be “off the hook”.
Under the Representation Agreement Act, you may make a Representation Agreement authorizing a representative to make health and personal care decisions for you. Your Representative will be need to know about your Expression of Wishes so that they can follow your wishes.
Under the (unfortunately named) Health Care (Consent) and Care Facility (Admission) Act, if you are incapable of giving or refusing consent to medical treatment, the health care provider is to go to the highest ranking of the following people who are available and willing to decide:
- your court appointed guardian (committee), if any, or representative under a Representation Agreement, if any
- your spouse (including common law or same sex spouse)
- any adult child
- a parent
- a sibling
- a grandparent
- a grandchild
- anyone else related by birth or adoption
- a close friend
- someone related to you by marriage
- if no one else is available, or there is a dispute about who is to be chosen, someone authorized by the Public Guardian and Trustee.
The person making the decision will be bound to comply with any wishes you expressed while you were still capable. Accordingly, an Expression of Wishes is legally valid (although it won’t authorize who can make the decision for you – that can only be done in a Representation Agreement). If you haven’t expressed your wishes, the person deciding for your must make the decision on the basis of your known beliefs and values. If your beliefs and values are not known, then the decision must be made on the basis of what is in your best interests.
We recommend that our clients who wish to plan for the possibility of disability consider making an Expression of Wishes and Representation Agreement, as well as an enduring power of attorney for financial matters. For more information, please contact us.
I can’t say enough about our satisfaction with Lianne Macdonald. She was extremely patient and understanding and helped us attain our wishes with our will. She gave legal advice but helped us to fulfill our wishes in a way that worked for us.
Del was patient, considerate, listened to my issues and treated me with professionalism and respect. Del put in extra thought in drawing up my will by thinking through the legal consequences of different options.
I wanted to say thank you for your help with making out our wills. We have not needed legal advice until now so I was not looking forward to searching for a lawyer that I trust. You made the whole process easy to understand and my wife and I feel that, with your guidance, we were able to make the proper decisions in regards to our children’s future. I would have no problem recommending you as you are friendly, professional, you listened to our needs, and you are affordable. Thank you for helping us know that our children will be safe and secure if we aren’t around to take care of them.
This is just a quick note to let you know how much we appreciated your personal service in preparing a power of attorney for my mother last month. As you know, Mom is quite challenged with the English language and she needs a lot of clarifications. Your draft given to her ahead of time, your use of regular language rather than legalese and your patience with her in your office meant so much to her. She was just as much at ease as when she conducts business in her native French language. So, once again, many thanks for the human touch.