Law Times

Page 12 OctOber 26, 2015 • Law times www.lawtimesnews.com Physician-assisted dying and the estate plan BY JUDY VAN RHIJN For Law Times he Supreme Court's decision in Carter v. Canada (Attorney General) to strike down the criminal provisions relating to physician-assisted dying has opened the door to an expansion of end-of-life planning. While the area remains murky pending legislative reform, estate lawyers and their clients are cautiously proceed- ing to record end-of-life wishes that an- ticipate new legislation. With less than six months left until the suspended judgment of the Supreme Court comes into effect, federal and provincial panels are hurrying to inves- tigate foreign practices and formulate workable legislative options. The expert panel on options for legislative reform is the federal body charged with the task. Its three members, consisting of profes- sors of psychiatry and palliative care, dis- ability studies research and education, and law, have been busy consulting with key stakeholders, subject-matter experts, medical authorities, and the interveners from the Carter case as well as canvassing comments from the public. In the meantime, estate lawyers are al- ready fielding queries about the case and attempting to draft wills and other end- of-life directives that take advantage of the prospect of legalization. "I would say that, yes, more and more of my clients are ask- ing how the recent decision might impact them and their loved ones," says Holly LeValliant of Basman Smith LLP. "I think people are excited about the possibility of having more choices open to them." Suzana Popovic-Montag of Hull & Hull LLP says the really key thing about the case is the increased awareness of the issue. "Now, there is a discussion because the Su- preme Court has blessed the fact that doc- tors can assist the critically ill. We currently have do-not-resuscitate orders, the right to refuse or withdraw treatment, the right to refuse food and drink, and palliative seda- tion, which is typically the last resort. What assisted death does is to give an alternative to the last one. The physicians can really re- lieve suffering and hasten death." Lawyers aren't seeing any changes in practice at the hospitals as yet. "Under- standably, physicians are leery without guidelines and the standards needed to implement it," says Popovic-Montag. "It is an unbelievable thing to even think about partaking in and especially without guidelines. Doctors still have the right to refuse to partake in it in recognition it's a moral, personal, and ethical decision for each doctor that's asked to assist." The Carter decision canvasses the need to be very careful about both moni- toring and enforcement around assisted dying. "We have always been scared that this will be a slippery slope with people abusing it," says Popovic-Montag. "It scares me more that someone might ap- ply it in error because it's not undoable. The court recognizes that other jurisdic- tions are doing it and doing it well." The Supreme Court has given some guidance and parameters to the health profession that lawyers are making note of in their drafting. "Practitioners start with the law," says Popovic-Montag. "The key is clear consent by a competent in- dividual with a grievous or irremediable condition enduring suffering that is in- tolerable to that individual. That's a pret- ty subjective test on each one of those." LeValliant sounds a note of caution. "We can plan but we warn the client we don't know if their directives will be binding. There may be moral suasion for the substitute decision-maker, institution or doctor. The key is dialogue — letting people know your wishes." Hugh Scher, who represented the Eutha- nasia Prevention Coalition in Carter, raises the argument that prior consent comes with the necessity for informed consent. "It is a serious risk to go ahead if safeguards are then put in place which preclude various forms of conduct and measures," he says, stressing that the definition of prior consent is a full and informed understanding of the circumstances at the time someone seeks to implement the wishes. He also believes an advanced directive must be specific to the condition the per- son is suffering from. "There cannot be a general expression or general wish. They must be cognizant to what the situation will be at the time." LeValliant thinks the legal profession is looking for more direction from Parlia- ment. "While lawyers may be eager to ap- ply the decision to their practice, I think it might be more prudent to adopt a wait- and-see attitude since we do not yet know exactly how legislation might affect things. The legal profession will need to know what safeguards are in place before rely- ing on the decision to protect vulnerable people from being coerced into request- ing physician-assisted dying and to ensure that the person requesting physician-as- sisted dying is mentally competent." In fact, the Supreme Court clearly said consent would be necessary at the time, says Scher. "In the context of assisted euthanasia, the Supreme Court does not permit prior consent. The notions of consent, capac- ity, voluntariness, and absence of duress are a fundamental requirement to access this measure. That's not to say the legisla- ture couldn't legislate that. The Supreme Court decision is a f loor beneath which people cannot operate, but the legislature could implement allowances for prior consent for assisted suicide." LT G iven the increased mobility of clients and globalization of assets, property at death is more often than before located in several different jurisdictions. When a client dies leaving assets in more than one country, conflict of laws rules step in to help determine which country's law should govern estate succession. To achieve more clarity and certainty, in 2012 the Europe- an Union passed Regulation No. 650—the "Succession Regulation." As of August 17, 2015, it is now fully operational in all EU member states except Denmark, the U.K. and Ireland, which opted out. The Succession Regulation, among other matters, provides harmonizing rules to determine which country's law will apply to a deceased person's estate (both personal property and real estate). Under it, a deceased person's "last habitual residence" will in most cases determine which country's laws apply. A person can choose to apply the law of his or her nationality if it is different from his or her place of habit- ual residence. This feature is of particular importance to Canadians who have an EU connection. Also, if a person has dual or multiple nationalities, he or she can choose any of them to apply to his or her estate, even a non-EU member state. Situations in which the Succession Regulation may be particularly relevant include: • Canadian citizen resident in a participating EU member state; • Canadian citizen resident in Canada with assets in a participating EU member state; and • Canadian citizen resident in a non-participating EU member state (e.g., the U.K.) with assets in a participating EU member state. As an example of how this new law can be helpful, consider an Ontario resident with a vacation property located in Italy, a civil law jurisdiction. He or she can choose in his or her Ontario will that Ontario law applies to the estate in Italy, including Italian real estate. If correctly done, Ontario law should apply to the Italian real estate on his or her death. Without this new Regulation, Italian law would otherwise apply to Italian land. Italy's internal laws incorporate "forced heirship" rules, which an Ontario resident will usually wish to avoid with respect to his or her Italian property. Forced heirship laws—present in a number of EU states—often provide a mandatory distribution scheme among a person's spouse and children. In the Canadian estate planning context, the ability to apply a Canadian jurisdiction's laws to succession of prop- erty will help ensure forced heirship rules do not apply. Another example is a Canadian citizen living in Germany and habitually resident there, but with an Ontario domicile for property purposes. Under the new Regulation, in the normal course, German law will apply to his or her worldwide assets, including assets outside of Germany. If there is real estate located in Ontario, the property falls under Ontario rules and is subject to Ontar- io law, but it can be brought into account in the German estate administration. Habitual residence in Germany brings into play Germany's forced heirship rules—which is potentially unintended or unwanted. However, the new law permits the Canadian to choose Ontario law under his or her will. Ontario's internal law would apply given that property matters fall under provincial law, and German law will not apply. Canadians habitually resident in an EU state should obtain advice on their estate planning to avoid the unintended application of the law where they habitually reside, and consider choosing their law of domicile of a Canadian province. The new European rules are a welcome development in estate planning and administration, including for Canadian clients who increasingly have ties to EU juris- dictions given the ability to make a choice of law. In the Canadian context, consideration of these rules is critical when drafting a will for a client with connections to participating EU member states. By Margaret O'Sullivan How new EU rules for cross-border succession apply to Canadians Sponsored by 'We can plan but we warn the client we don't know if their directives will be binding,' says Holly LeValliant. T FOCUS

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