Writing a living will
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
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
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.
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.
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.
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.
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
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
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
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.
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.