Law Times

Page 10 February 22, 2016 • Law Times www.lawtimesnews.com Decision informs how lawyers advise on wills, powers of attorney Carter v. Canada means lawyers 'painting in the dark' YAMRI TADDESE Law Times I n light of the Supreme Court's decision on physi- cian-assisted suicide, wills and estates practitioners are grappling with questions around how the law would be imple- mented in Ontario and what it would mean for their jobs. Lawyers agree that Carter v. Canada (Attorney General) will change the way they advise clients while drafting wills and powers of attorney for personal care. But with key details still missing on how a new legisla- tion would be applied in prac- tice, their job is currently akin to "painting in the dark," one law- yer says. "This is not a science yet; this is still art, and we're painting in the dark," says Mark Handel- man, a lawyer at Whaley Estate Litigation. The Supreme Court legalized physician-assisted suicide where "competent adults who are suf- fering intolerably as a result of a grievous and irremediable medi- cal condition" have decided they want help ending their lives. But even that language raises a number of issues, says Lindsey Park, who practices estate law at McBride Bond Christian LLP. "When does someone be- come incompetent for the pur- pose of making this decision?" she says, adding different levels of competency are required for different decisions. "Competency is such a grey area. Some people on Monday and Tuesday have competency and on Wednesday don't and they have capacity again on Thursday," Park adds. Park also says it's unclear what would constitute clear con- sent. Currently, the Health Care Consent Act allows substitute decision-makers to consent to a treatment option. But "is [physi- cian-assisted death] a treatment they're going to be able to con- sent to?" Park asks. "Who decides what a grievous and irremediable illness is?" Lawyers also don't know if the law will allow assisted death for people who have lost capac- ity but made it clear earlier that they'd like physician-assisted death if they become grievously ill without prospects of recovery. But "a wish for assisted death would certainly guide the phi- losophy of treatment decision even if it's not available because of loss of capacity," Handelman says. If a patient had expressed those wishes, doctors could like- ly apply the "no heroic measures" provision as an alternative even if physician-assisted death is not an option, he adds. "One way of looking at the Carter decision, by the way, is this is just another treatment option at end of life. There's a continuum of treatment, from do everything to actively end my life," Handelman continues. Park says if clients are cer- tain they don't find euthanasia acceptable under any circum- stances, she puts a clause in their power of attorney for personal care to ref lect that. What is certain, lawyers say, is the need for conversations around dying and end-of-life wishes between families as well as lawyers and their clients. "It's vital to talk about wishes and values at end of life when drafting powers of attorney. It is also vital that lawyers bring home to their clients the im- portance of telling their fam- ily members what they put into their PoA and making sure whomever they appoint as attor- ney is OK with advocating those wishes," Handelman adds. Park agrees. "The first thing I have to tell [clients], because of the Carter decision, is, 'Look, you don't know if the person you appoint is going to be able to consent to euthanasia on your behalf or not. It may be legal for them to consent on your behalf. The law is changing and I can't tell you today whether that's going to be legal or not. But because of that, consider that when you consider whom you're appointing," Park says. While she's always given this advice, Park says it's especially important in light of Carter. "This person [your attorney] at the end of the day may be the person who gets to decide when your time comes. So first criteria: Pick someone you really trust and someone who understands your values," she continues. In cases where a power of at- torney is given to more than one person, it's important for the grantor to appoint people who can work well together. "One of the things that goes wrong with PoAs and with wills is people think they need to ap- point all of their children to be attorneys and executors, and now you've got kids who can't agree on who gets the family cottage the first weekend in July, and you're putting them into a far more emotionally fraught and far more complex decision- making process where they're supposed to agree," Handelman says. "Lawyers need to spend more time having that conversation with their clients and they need to makes sure that the people chosen are able to work togeth- er," he adds. Charles Tickler, who is also a wills and estates lawyer, says Carter may well mean more liti- gation. "I suspect that we'll see in- creased litigation between fam- ily members who don't agree or can't agree on the course of ac- tion and need the courts to sort it out," he says. "We may see increased dis- putes between doctors and fami- lies as to what the best course of action should be." Lawyers are also concerned about abuse of power of attorney. They say patients could be ma- nipulated into choosing some- one as attorney and, at times, ap- pointees don't have the patients' best interests at heart. That's part of the reason why Handelman says he sup- ports a tribunal approach to preapproval of assisted-death requests. "I don't think that it should be left to doctors alone, and I take that view for many reasons," he says. One of those reasons is sim- ply for the protection of doctors, he says, adding that a tribunal decision granting a request for physician-assisted death is the surest way physicians can know they are doing the right thing. "But it will also protect pa- tients [and] provide consistency across the country," Handelman adds. While hospitals will have to draft their own policies around physician-assisted death, it's un- likely there will be consistency across the board in how these decisions are made, he says. "One of the things nobody wants to see is somebody having to hospital shop for their assisted death." LT FOCUS Essential Tools for Family Law Professionals For more information, visit www.divorcemate.com 1.800.653.0925 x407 | sales@divorcemate.com NOW AVAILABLE! ADD FREEDOM & FLEXIBILITY TO YOUR PRACTICE DM Tools Cloud Work anywhere, anytime, on any device. For child and spousal support calculations. Available for PC, Mac, tablets and smartphones. Untitled-1 1 2015-11-04 9:02 AM It's vital to talk about wishes and values at end of life when drafting powers of attorney. Mark Handelman Lindsey Park says it's unclear what constitutes clear consent for clients who may be considering physician-assisted suicide.

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