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Writing a living will

They say death and taxes are the only sure things in life. When it comes to death, estimates suggest about half of all Canadians are prepared and have a will in place.

Having a will is good for when you take your final breath, but that covers only one possible outcome of an illness or accident. What happens if, before you die, you become incapacitated and incapable of caring for yourself? Who will make health-care decisions for you and determine which treatments you should have? A will won't help in those situations because it only kicks in upon death.

That's where a living will comes in to play. It's a document that sets out who you want as your decision-maker in the event that you can't act for yourself. It also provides instructions on types of treatment you do or don't want, explains Gary Wilson, a partner in the wealth management practice at Vancouver law firm Borden Ladner Gervais LLP.

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Having a living will not only ensures that your wishes are met when you aren't able to make sure they're carried out yourself, but it can also take a lot of stress off your family. So, read on to find out everything you need to know about writing a living will.

Model living will available online
A recent Decima Research Inc. poll found that only 41 percent of Canadians have some type of living will in place, with Quebec rating the highest at 45 percent and Atlantic Canada the lowest at 37 percent.

The term "living will" is generic for the type of documents that provide guidance and direction in the event that you are somehow incapacitated and unable to make health-care decisions for yourself.

Each province has its own legislation, so the rules differ depending on where you live. Some provinces call them advance directives or health-care directives, while others call them mandates, representation agreements or powers of attorney for personal care.

Dr. Peter Singer, director of the University of Toronto Joint Centre for Bioethics, says a living will is a good idea because it can "help people have discussions about the end of life with families around the dinner table."

By setting out your wishes in advance, it relieves the anxiety from a family member having to make a difficult call in the event you are incapacitated.

Singer has developed a model living will that covers each province. From the Joint Centre for Bioethics homepage, click on Living Will, complete the disclaimer, and a list of models will appear for download. He says there are essentially two parts to every living will: a proxy directive and, what he calls, an instruction directive.

Naming a proxy
The proxy directive declares who you choose to make decisions on your behalf if you can no longer do so. If you don't name someone and become incapacitated, provincial law determines who makes those decisions for you. This is done according to a predetermined hierarchy, usually starting with your spouse and working through your immediate family before extending to other relatives.

"You don't want to leave it to the pecking order of the (legislation)," says Barry Corbin, a lawyer at Corbin Estates Law in Toronto. He recommends you specify who you want to make those critical decisions.

It should be someone you trust and who has an understanding of your attitudes and beliefs about medical treatments and personal care. The person should also be willing to take on the task, so you need to discuss it in advance.

You can name more than one person, but you run the risk of disagreements, so you then need to create a resolution process, which may end up being needlessly overcomplicated.

Once you choose a proxy, you should also name alternatives, says Barbara Krahn, an estates lawyer at Fraser Milner Casgrain LLP in Calgary. Because if, for example, you name your spouse and you're both in the same car accident, there will be no one to fill those shoes, and provincial law will determine who acts on your behalf.

The instruction directive
This is the component of the living will that specifies which health-care treatments you want or don't want. So, for example, do you want to be resuscitated? Put on a ventilator? Undergo a blood transfusion? Be fed through a tube?

Singer says this directive is an attempt to foresee some of the issues that could arise if you slip into a coma or can no longer make decisions for yourself. However, he warns, "you will never get exactly the right scenario," so it's a case of trying to cover as many angles as possible.

You can also include directives on personal care, such as where you would like to live if you are incapacitated. Lawyers say it's the instruction directives that present the biggest challenge because you are trying to predict the future. So, that's where language such as, "take no heroic measures to revive me," come into play.

Lawyers stress that expressing your wishes is key for your heath-care proxy. "If you haven't expressed your wishes, or if there's some issue as to what those wishes may have been ... there are going to be difficulties," says Wilson. You could suddenly be the centre of a dispute among relatives over the type of treatment you receive, and it could end up in court.

The problem, he says, is people execute these documents and put them in a safety-deposit box and never revisit them. "Decades go by and the person's beliefs or values may change over time," says Wilson. So, like your will, they should be periodically updated and reviewed.

While lawyers can help you craft language around your wishes, Springer says it's important you consult your doctor and let her review the document and discuss it with you, especially if you have existing health issues.

Basic requirements
Generally, living wills must be in writing, dated and signed, and could require a witness. However, provinces are all over the map when it comes to things like the age of consent for making a living will, who can or can't be a proxy, and how it can be revoked, so it's best to speak to a lawyer.

Just because you have a living will, however, doesn't mean it will be honoured. For example, if you are a snowbird and spend six months of the year in Florida and are hospitalized there, Corbin says there may be a question of whether US doctors will recognize the document.

Living wills are not expensive. Most lawyers charge a few hundred dollars, but they can help reduce the anxiety and turmoil that can arise if you suddenly become incapacitated.

"Given that this type of situation can arise at any time in one's life, I would suggest that once you are an adult and reach the age of majority, you should make (one and) make your wishes known," says Wilson.

Jim Middlemiss is a freelance writer and lawyer based in Toronto. He's a frequent contributor to the National Post, Investment Executive and Wall Street & Technology.

 
-- Posted: June 3, 2005
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