Estate Planning in the Age of Assisted Dying

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Estate Planning in the Age of Assisted Dying

April 21, 2017

By Sarah Anderson Dykema, CIPP/C, at McInnes Cooper

In three years (lightning speed in the law), medically assisted dying went from being illegal to being legal. A great deal has changed, a great deal will still change, and a great deal of uncertainty remains. But one thing is crystal clear: people want the option of medically assisted dying, and they want to plan for that option.

Here’s what led to the legalization of medically assisted dying, what the current state of the law is, what the future could hold – and how those undertaking estate planning in the age of assisted dying can try to plan for it.

THE PAST

A limited right to medically assisted dying has been legal for almost one full year. On February 6, 2015 the Supreme Court of Canada, in Carter v. Canada, unanimously decided that certain patients have the right to seek medical help to end their lives, and gave the federal government time to come up with legislation to deal with the decision. On June 17, 2016 the federal government enacted Canada’s medical assistance in dying legislation, Bill C-14. Some provincial medical regulators have subsequently provided practitioners with guidelines to comply with Bill C-14; for example, the N.S. College of Physicians and Surgeons developed its standards, Professional Standard Regarding Medical Assistance in Dying, through consultation with provincial stakeholders and physicians.

THE PRESENT

On April 20, 2017, CBC News reported that, based on data requested from health ministries and coroners’ offices across Canada, more than 1,300 Canadians have sought medically assisted death since it became legal in 2016. Bill C-14 details the eligibility criteria to access medically assisted dying and the public safeguards to protect those criteria.

Eligibility. Under the current law, a person is legally eligible to receive medical assistance in dying only if they meet all of these criteria:

Eligible for health services funded by a government in Canada.
At least 18 years of age and capable of making decisions with respect to their health.
Have a “grievous and irremediable” medical condition.
Have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure.
Give informed consent to receive medical assistance in dying after having been informed of the means available to relieve their suffering, including palliative care.

“Grievous and Irremediable”. A person has a “grievous and irremediable” medical condition only if they meet all of these criteria:

Have a serious and incurable illness, disease or disability.
Are in an advanced state of irreversible decline in capability.
That illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable.
Their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Safeguards. Before a medical or nurse practitioner provides a person with medical assistance in dying, that practitioner must both:

Be of the opinion that the person meets all of the eligibility criteria.
Ensure that the person’s request for medical assistance in dying was both: made in writing, signed and dated; and signed and dated after the practitioner informed that person they have a grievous and irremediable medical condition.

THE FUTURE

The current legal regime does, however, create uncertainty – that only further legislative action by the federal government or decisions of the courts can resolve.

Reasonably Foreseeable Natural Death. One big question is whether Bill C-14’s requirement that a person’s natural death has become “reasonably foreseeable” will hold up. This is the subject of the first major test of Bill C-14 in a court. Just after Bill C-14 took effect, the B.C. Civil Liberties Association and Julia Lamb started a lawsuit that alleges this requirement is unconstitutional on the basis it infringes the rights to life, liberty and security of the person and to be free from discrimination on the basis of physical disability as guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms. However, the lawsuit hasn’t yet been scheduled for a trial and even when (and if, since the parties could reach a settlement before this) it is, there’s a good chance the unsuccessful side will appeal the decision, and it could ultimately end up before the Supreme Court of Canada – years from now. And only a decision of the Supreme Court of Canada is binding elsewhere in Canada; any decision of a B.C. courts is only binding in B.C., though it could help persuade a court in another province or territory.

Age. The same B.C. lawsuit (Lamb v. Canada) alleges Bill C-14’s requirement that to be eligible for medically assisted dying, a person must be at least 18 years of age is unconstitutional on the basis it infringes the right to be free from discrimination on the basis of age as guaranteed by section 15 of the Charter. And the same process and timeline will apply.

Advance Directives & Capacity. Another unanswered question is whether a person can make a request for assisted death in advance of meeting the eligibility criteria for such assistance, but to apply only if and when they do meet the criteria, and if they can, then under what circumstances. The Supreme Court of Canada’s decision in the Carter case dealt with a situation in which a person is facing significant physical decline, but remains mentally capable; similarly, Bill C-14 requires a person be mentally capable to make decisions. But advance directives simply don’t apply in these circumstances: they become effective only once a person loses mentally capacity – yet if a person has lost mental capacity, under Bill C-14, they are no longer able to make a contemporaneous request for assisted death.

3 KEY ESTATE PLANNING CONSIDERATIONS

There’s a great deal of uncertainty in this area, but estate planning should not – and cannot wait for complete legal certainty. Here are three key considerations to help those undertaking estate planning in the age of assisted dying plan for it.

Adapt to change. This is an evolving area of the law, and that evolution is, in the legal world, rapid. Things have changed, and they will continue to change as more people seek medically assisted death and as more people test the current law in courts and as the current legal tests make their way through the judicial system. Estate plans should be flexible: people need to review them regularly to ensure they evolve not just as their lives and needs evolve, but also as the law evolves.

Something (in writing) is better than nothing. Currently, the law doesn’t allow for medically assisted death authorized by an advance directive. But it’s always better to have wishes stated than not – and hospitals and courts do respect advance directives generally. The N.S. Supreme Court’s 2015 decision in B.M. v K.S. illustrates the court’s view: wishes in a person’s advance directive can even trump what is arguably in that person’s best interest. Though it’s not compliant with Bill C-14, nor has it been tested by a court – so whether a medical practitioner or a court will enforce it is uncertain – consider an advance directive that includes this: “I understand that physician assisted death is now legal in Canada. If I have a grievous and irremediable medical condition and lack the mental capacity to give consent to physician assisted dying, it is my wish that my delegate give consent for me, and that my physician act in accordance with any direction.”

Do an insurance check. A person contemplating medically assisted death at all, or attempting to do so in an advance directive, should confer directly with their insurer first. One of the uncertainties is whether an insurer will pay out under a life insurance policy if the insured chooses to die under the assisted dying law. It will, of course, depend largely on the policy wording, and there may be issues under health and disability insurance policies as well as life insurance policies.

Please contact your McInnes Cooper lawyer or any member of the Estates & Trusts Team @ McInnes Cooper to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2017. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent

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