What is a Living Will, and should I have one?


			
			

While Living Wills are generally not effective at accomplishing your wishes, there are a variety of options to express your personal wishes.

Who can help you

Our BC Notaries would be happy to discuss Living Wills with you:

Linda Caisley at Kelowna-Downtown
Lawrence E. Stevens Jr. at Kelowna-Enterprise & Spall
Debra van Beers at Westbank

Our BC Lawyers would be happy to discuss Living Wills with you:

Jaime Boyle at Kelowna-Downtown
Daniel K. Lo at Penticton
Keith Martens at Kelowna-Enterprise & Spall

Worried about what happens at the end of your life?

What is a Living Will?

A Living Will (also sometimes called a “Do Not Resuscitate” or “No Heroics” document) is a short document setting out your wishes around your end-of-life health care.

Sometimes people call the process of letting someone die at the end of their life (rather than keeping them alive on some form of life support, or resuscitating them) “pulling the plug”, and they will therefore often informally call a Living Will a “Pull the Plug” document.

A Living Will isn’t the kind of legal document that is created by a statute, like a Will, Power of Attorney or Representation Agreement. It’s an informal document. Despite this fact, courts have sometimes accepted them as an expression of wishes.

What are expressed wishes?

Expressed wishes are written statements of belief you make to give others guidance on how to care for you if you are unable to speak to your own health care.

Sometimes people make these expressed wishes statements to set out religious or cultural beliefs about health care (think about Jehovah’s Witnesses not wanting blood transfusions).

Living Wills are a very specific kind of expressed wishes statement which only deal with end-of-life issues. You wouldn’t make a Living Will to deal with regular health care, or personal care.

What does a Living Will say?

There are many versions of Living Wills, but they usually say some variation of “If I am truly, truly at the end of my life, and it’s time to let me go, let me go.”

A Living Will might include statements like:

  • don’t hasten my death, but allow it to come mercifully and painlessly
  • I fear the indignity of deterioration, the loss of my dependence or hopeless pain more than I fear death
  • if there is no reasonable expectation of my recovery, let me die – do not keep me alive by artificial means or heroic measures
  • give me comfort care alone – no active resuscitation

Sounds good, right? Absolutely. No one wants to be the proverbial vegetable that has to be turned regularly or tube fed. Many feel that this document is a way that they can take control of what happens to them, especially at the end of their lives.

When does a Living Will get used?

A Living Will only deals with end-of-life health care issues, and therefore it is only intended to be use when you are truly at the end of your life.

Do Living Wills work?

Not always, and probably not in the way you think they do.  There are several challenges with Living Wills:

  • how do the health care providers know that you haven’t changed your mind about the health care instructions in the Living Will?
  • would you have changed your mind about the health care instructions in your Living Will if you had known that medicine had just recently come up with the magic pill that can now solve the problem you currently have?
  • you can’t give instructions about personal care (qualify of life) issues in a Living Will
  • you can’t appoint someone to help you with these decisions, or to make sure your wishes are carried out
  • is the language in the Living Will too broad? Not clear?

Only usable at death

Most of us think our lives will end as a result of a major, irreversible, life-ending event such as a sudden, and catastrophic stroke or heart attack.  Sadly, though, that’s not what happens to most of us.  For example, Stats Canada tells us:

  • 32% of Canadians generally suffer from a chronic (long-term) illness
  • 75% of seniors (65+) and 48% of older adults (45 to 64 years) have one or more chronic conditions
  • 24% of seniors have three or more chronic conditions
  • chronic diseases account for 70% of all deaths
  • almost 1/3 of seniors over 85 have some form of dementia, such as Alzheimer’s disease
  • 52% of Canadians think an advance health care plan is important and should be made when healthy but only 13% of Canadians actually make such a plan

As you can see, most of us live with one or more life-limiting illnesses at the end of our lives, sometimes for years.  Parkinson’s, Alzheimer’s disease, MS, ALS – all are examples of long-term illnesses which you might live with for a long time.  Since there is no imminent threat of death with these illnesses, your wishes about your health car providers should treat you in an end-of-life situation are important, but often premature.

One of the biggest challenges with Living Wills is that they only deal with one small time-frame in what can often be a long illness or disease – the end of your life. Living Wills don’t deal with the entire life-cycle of a disease or an illness, or help us know how to deal with life-long disabilities.

Failure to Appoint

The other major challenge with a Living Will is that they are merely an expression of your wishes – they do not appoint anyone to stand up for you and make sure your wishes are known (and followed).  And it’s not as simple as adding a sentence in the Living Will that says “let my spouse/child/sibling make these decisions for me”.  BC’s laws require very specific language if you want to appoint someone to be your representative. If you want to appoint someone to ensure that your wishes for health care and personal care are enforced, you need to make a Representation Agreement.

Personal Care

Personal care is the area of law that covers your quality of life – what do you do for fun? Do you work or retire? Where do you live, and with whom? Do you drive a car? What do you eat? Dress like? What happens to your pets or minor children if you are sick?

Under the law, you have the first right to consent to personal care decisions. If you are incapable of making these decisions, and you have not appointed a representative under a Representation Agreement, a court appointed Committee may do so. That court appointed Committee could be the Public Guardian and Trustee, if you have no family or friends to volunteer for this appointment.

What should I have instead of a Living Will?

Instead, consider appointing a representative under a Representation Agreement. Unlike a Living Will, this document has full force and effect in law, giving your representative a number of rights.

This ensures that someone who knows you well, and knows what kind of care you would accept (and reject) is making sure your wishes are known and carried out. As well, you can put your expressed wishes right into the representation agreement, to ensure there’s as little uncertainty as possible.



			

			
			
			October 7, 2017 2:44 pm 
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