Living Wills: Questions and Answers

1. Q: What would a Living Will typically consist of?

A: A Living Will tends to form part of a more comprehensive estate planning document known as the Power of Attorney for Personal Care. The document permits one the opportunity to set out specific instructions regarding future medical treatment. The Living Will, specifically, will address whether the grantor of the Power of Attorney for Personal Care wishes or to be kept alive by medical intervention (i.e. life support) if recovery is unlikely. The Living Will portion of the Power of Attorney for Care may, for example, direct the named attorney for Personal Care to take all measures to preserve or even prolong the grantor’s life. Alternatively, the grantor can definitively establish that nothing at all shall be done to extend the period of time in which the grantor is kept alive.

2. Q: Is a Living Will different from a Last Will and Testament?

A: Yes. First and foremost, a living will applies during one’s lifetime whereas a Last Will and Testament is only consulted at time of death. Second, whereas the Last Will and Testament addresses the distribution of a deceased’s assets, a Living Will addresses matters concerning medical treatment and personal care during a person’s incapacity to make such decisions personally.

3. Q: How do I make a Living Will/Power of Attorney for Personal Care?

A: The best approach to take would be to consult legal counsel practising in the area of Wills and Estates in order to ensure that the instrument comprising the Power of Attorney for Care directive is legally and comprehensively prepared.

4. Q: Who can act as the Attorney to carry out my instructions?

A: You may appoint anyone to act as your Attorney for Personal Care provided such person has a genuine concern for your well being and appreciates that decisions may have to be made on your behalf respecting your personal care. The Attorney must be at least sixteen (16) years of age and cannot be someone who is paid to provide health care services to the grantor.

5. Q: How can I make sure that my Living Will will be followed?

A: The first priority in this respect would be to have a proper form of Power of Attorney for Personal Care prepared in accordance with the Substitute Decisions Act. The term “Living Will” is not a legally precise or recognized term under Ontario Law which makes it especially imperative that the legal enforceability of one’s legal health care directive is not compromised by poor form or deficient substance. All this to say that, employing an Estates Lawyer is the best assurance that a proper form of health care directive is prepared.

Secondly, it is prudent to take careful steps to select an Attorney for Personal Care that is willing to fulfill the important role and the same would hold true with regard to one’s choice of alternate Attorney(s) for Personal Care.

Third and lastly, it is also prudent to make one’s health care priorities and sentiments known to the named Attorney(s) and even substitute Attorney(s). It would be especially helpful in determining whether the intended named Attorney(s) and substitute Attorney(s) have any objection to the health care directive which may one day be theirs to administer. It would otherwise be counterproductive to name as an Attorney an individual who would be unwilling to provide a DNR (Do Not Resuscitate) directive to medical staff when such a directive is exactly what one’s Power of Attorney for Care would call for.