The prolonged and bitter dispute over removing the feeding tube of a Florida woman left in a vegetative state after heart failure should send a clear message to financial advisors and their clients: make sure you take the necessary legal steps to avoid such a divisive experience for family and friends.
Similar disputes can arise if a person doesn’t make his or her wishes known about what should be done if that person is incapacitated, Canadian lawyers say.
“There was no objective evidence to show what [Terry Schiavo] wanted or didn’t want,” says Barry Corbin, a lawyer with the law firm Corbin Estates Law in Toronto.
In the Florida case, the husband and legal guardian of Schiavo, 41, sought to remove the feeding tube, arguing it was his wife’s wish not to live in such a fashion. However, she had not left written instructions to that effect, and Schiavo’s family argued that she should be kept alive. After numerous court battles, the tube was removed and Schiavo died on March 31.
The possibility of incapacitation raises a range of important personal and business questions that advisors and their clients need to consider. On a professional basis, who will make decisions about the business? Who will pay the staff? Who will
oversee the property, pay bills and be able to gain access to business bank accounts?
On a personal level, what about making medical decisions? Who will decide what treatment the incapacitated person will get or where that person will live if severely injured?
That is where a living will comes into play.
It’s a document that sets out who becomes the decision-maker in the event that a person can’t act for him- or herself. It can also provide instructions on types of treatment.
However, each province has its own legislative regime for dealing with these issues, usually under some type of consent-to-act legislation. That means the documents have a variety of names. Some provinces call them advance directives or health-care directives, others call them mandates, representation agreements or powers of attorney.
In Ontario, for example, the concept of the living will is embodied by a power of attorney for property, which designates someone to handle property, and a power of attorney for personal care, which appoints someone to deal with medical issues, Corbin says.
The power of attorney for medical care “deals with six things: health, residence, nutrition, clothing, hygiene and safety.” He adds a person can include a living statement of wishes outlining acceptable medical treatments in the event the individual is incapacitated, as in the Schiavo case.
The Quebec Civil Code also allows a statement of wishes, says lawyer Eric Hardy, a partner in Quebec City with Ogilvy Renault LLP : “The law doesn’t state in which form this statement should be made. Prudence suggests it be done in writing.” He adds that the mandate — the person named to make a decision on behalf of the client — will normally abide by a statement of wishes, but he or she is “not always obliged to do so.”
In British Columbia, a representation agreement authorizes a person to make health-care decisions on someone else’s behalf, says Gary Wilson, a partner with Borden Ladner Gervais LLP in Vancouver.
But the decisions must take the incapacitated person’s wishes into account.
“If they haven’t expressed their wishes or there is some question about what the wishes were, even with the agreement there will be difficulties. If the wishes aren’t known, the decision has to be based on the person’s known beliefs and values,” he says. The problem is wishes, beliefs and values can change. “Somebody could say those weren’t his recent wishes.”
Lawyers say if you don’t appoint someone to make health-care decisions on your behalf, you may find yourself under the care of someone you dislike. That is because many provinces have laws that appoint a representative to make decisions on your behalf if no one has been named. In Ontario, a spouse or partner would be named first; if that is not possible, the law provides that an adult child, parents, siblings and other relatives (in that order) could be named.
Given the legislation, the situation could become challenging. A person may be estranged from a spouse but not legally separated, or may not be on speaking terms with his or her children or parents. If you have strong views about whom you don’t want to make those decisions, you need a power of attorney for health-care. “You don’t want to leave it to the pecking order [under the legislation],” Corbin says.