My name is Mark Goodfield. Welcome to The Blunt Bean Counter ™, a blog that shares my thoughts on income taxes, finance and the psychology of money. I am a Chartered Professional Accountant and a partner with a National Accounting Firm in Toronto. This blog is meant for everyone, but in particular for high net worth individuals and owners of private corporations. The views and opinions expressed in this blog are written solely in my personal capacity and cannot be attributed to the accounting firm with which I am affiliated. My posts are blunt, opinionated and even have a twist of humor/sarcasm. You've been warned. Please note the blog posts are time sensitive and subject to changes in legislation or law.

Monday, February 5, 2018

Power of Attorney for Personal Care – Mental Capacity and Medical Assistance When Dying

While I still act as a corporate accountant, I am spending more and more of my time providing wealth advisory services to my current and new clients, which allows me to utilize my tax, estate planning and general accounting background. When I combine these technical aspects together with the experience I have gained in respect of understanding the nature of people in relation to their families and their wealth, I am able to provide a comprehensive plan for their current, retirement and estate planning.

In providing these services, I always ensure my clients have up to date wills and powers of attorney (“POA”) for their finances and personal care (health). In many cases, the POAs are either very old or not even in existence. When discussing POAs for personal care, I advise my client that there have been many changes in the law in respect to heroic measures and medical assistance in dying and depending upon their personal and religious views, they need to review these issues with a very qualified estate lawyer.

I thought today, I would do a bit of a Q&A on some of these issues and specifically the mental capacity required to make these decisions. I thus turned to my resident estate and wills expert, Katy Basi, for some direction.

Please note Katy's answers are specific to Ontario, if you live in another province, you will need to confirm that province’s legislative provisions.

If you are a reader of this blog, Katy needs no introduction. If you are a new reader of the Blunt Bean Counter, check out some of Katy’s guest blogs from estate planning for extended families to New Will Provisions for the 21st Century – Your Digital Life to Cottage Trusts among many other posts.

I thank Katy for her assistance with this blog post.

Power of Attorney for Personal Care and Medical Assistance When Dying


Below is a summary of the responses to my questions from Katy. I was personally very surprised at some of her answers to my questions, but given this complex, controversial and still evolving area of law, I guess in retrospect, I should not be surprised.

Questions and Answers:


Mark: Katy, a concern for all of us as we age is mental capacity. How does mental capacity affect POA‘s for health?

Katy: “First we need to appreciate that a POA for personal care is only relevant and effective when the person in question does not have the mental capacity to make their own health care decisions. I am asked fairly commonly by my clients to include provisions regarding medical assistance in dying in their powers of attorney for personal care. This request usually comes on the heels of a discussion about whether or not to include a “no heroic measures” clause in their document. I have to tell my clients that the legislation does not allow a mentally incapacitated person to have medical assistance in dying. This is the case even if the person requested this assistance, when they were capacitated, in writing via their power of attorney for personal care.”

Mark: So, are you saying that even where you have requested medical assistance in dying in your POA for personal care, if you do not have mental capacity when the medical assistance is desired, that request is essentially voided?

Katy: “There is a clear distinction in the medical assistance in dying legislation between a person who has the capacity to make their own personal care and health care decisions, and a person who does not have this capacity. The former can request medical assistance in dying if all of the other conditions of the legislation are met, and the latter cannot. As a person’s power of attorney for personal care is only effective upon the person losing their capacity to make personal care and health care decisions, by definition the document is only relevant upon incapacity. At that time medical assistance in dying is off the table as an option".

Katy clarifying note to Mark: "This exclusion only relates to medical assistance in dying – your most recent verbal or written instructions, made while capacitated, otherwise govern your personal care and health care".

Mark: This provision seems unfair?

Katy: “So under one view the legislation is discriminatory – people with capacity can obtain this assistance, and those without capacity cannot. So, I guess that if I have a grievous and irremediable medical condition, which is another requirement under the legislation, I hope that I at least have capacity, as otherwise I cannot receive medical assistance in dying. If I am mentally incapacitated, with a grievous and irremediable medical condition, my power of attorney for personal care can request that all heroic measures stop at this point, and that lots of morphine and other pain relief be administered. But that’s it – medical assistance in dying cannot be given, and I will have to die on my own, when my body finally gives up”.

Mark: So, is there anything that can be done in case of mental incapacity?

Katy: “For some clients we include a clause in their power of attorney for personal care that indicates their desire for medical assistance in dying if they are in a situation where the other conditions of the legislation are met, in the event that the current requirement to have capacity is amended by future legislative changes. A bit of a Hail Mary, but why not?”

I thank Katy for her insights on this complex topic.

Katy Basi is a barrister and solicitor with her own practice, focusing on wills, trusts, estates, and income tax law (including incorporation's and corporate restructurings). Katy practiced income tax law for many years with a large Toronto law firm, and therefore considers the income tax and probate tax implications of her clients' decisions. Please feel free to contact her directly at (905) 237-9299, or by email at katy@basilaw.com. More articles by Katy can be found at her website, basilaw.com.

The above blog post is for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Readers are advised to seek specific legal advice regarding any specific legal issues and for their specific province.

This site provides general information on various tax issues and other matters. The information is not intended to constitute professional advice and may not be appropriate for a specific individual or fact situation. It is written by the author solely in their personal capacity and cannot be attributed to the accounting firm with which they are affiliated. It is not intended to constitute professional advice, and neither the author nor the firm with which the author is associated shall accept any liability in respect of any reliance on the information contained herein. Readers should always consult with their professional advisors in respect of their particular situation. Please note the blog post is time sensitive and subject to changes in legislation or law.

4 comments:

  1. Mark as a long time reader, I have to say I loved this article. The Q and A format was very fresh. I know that you sometimes struggle to find new topics. All of your readers here love the variation of articles that you write.

    Thank you for all of your efforts. The blunt bean counter is certainly part of my Monday morning ritual.

    Kevin

    ReplyDelete
    Replies
    1. Hi Kevin

      I thank you for being a long-time reader and your positive re-enforcement today and in prior comments and emails. Your comments made me smile, not because they were very kind, but because you hit my mindset. I do often struggle to find new topics, I personally really liked the Q&A format and the post today and I need the variation or I would be bored out of my mind writing. Thx again for your comments.

      Delete
  2. As POA for my mother (98) and aunt (103), this article was important to me. A few months ago, my aunt ended up in ER with what might have been a stroke; I had to decide whether to send her to the next town for a scan or not. I dithered knowing that the trip, even by ambulance, would be extremely difficult on her. The doctor said, in no uncertain terms, that this is why she appointed me as her POA, to make those decisions. That's when it hit home. I will have to face more of those decisions in the coming few years, as they age and deteriorate.

    ReplyDelete
    Replies
    1. Hi Raven

      Thx for sharing your story. I think your issues will become more and more common and the legislation will need to evolve to put less pressure on the appointed POA

      Delete