When the topic of estate planning comes up, the first notion that pops into our heads is how we will divide our assets after we’re gone. That’s important, of course, but an estate plan also include important documents like a health care directive that might be essential while you’re still alive.
A health care directive outlines your wishes about the care you receive — and names a health care proxy to make those decisions — if an accident or illness leaves you unable to advocate on your own behalf.
“It’s in your best interests to have both a power of attorney and a health care directive just in case something happens,” says Matthew Bolt, barrister and solicitor for PKF Lawyers in Winkler, Man. “It’s also in your best interests to execute a power of attorney and health care directive while you have the mental capacity to do so.”
Research published in the journal BMJ Supportive and Palliative Care found that advanced care planning, including considering future health care decisions and communicating those wishes to loved ones, can improve patient care, reduce caregiver burden and decrease end-of-life health care costs.
Despite the importance of advanced care planning, a recent survey shows nearly half of Canadians lack a health care directive, also known as a living will, advanced directive, personal directive or representation agreement.
If a health care directive isn’t part of your estate plan — or you have no estate plan at all — here are six things you’ll be glad you’ve learned about this essential document.
1. Health care directives aren’t just for old folks
Medical crises happen at all ages. The latest data from the Association of Workers Compensation Boards of Canada shows that Canadian workers reported 229,874 traumatic injuries in the workplace in 2018, with farming consistently ranked as one of the most dangerous occupations.
Accidents and other medical emergencies could leave you unconscious or otherwise unable to make your own health care decisions. A health care directive ensures that the person you appoint is legally able to make decisions on your behalf. It’s an important document whether you’re 35 or 85.
2. You must choose a health care proxy
Your health care proxy will be your voice if you are unable to speak for yourself. Their role may include discussing diagnosis and treatment options with health care providers; providing informed consent for medical procedures, including surgeries; reviewing medical records; and making decisions about organ donations and funeral arrangements.
“It’s a document that gives the person named a lot of power so you want to make sure you trust who you’re naming,” Bolt says. “We always advise clients to have a discussion with their prospective proxy beforehand to ensure that the person named is agreeable to (taking on the role)… It can be an uncomfortable conversation but, hopefully, you only have it once and can check that box.”
It’s best to choose someone who can stay calm during a stressful situation, communicate clearly with health care providers and be trusted to honour your wishes. In most provinces, a health care proxy must also be at least 18 years old. If you fail to name a power of attorney, the courts could step in.
“If you do not have a power of attorney and are incapable due to an accident or illness the public guardian and trustee may be appointed as your guardian,” explains Nate Martin, practising partner with SmithValeriote Law Firm LLP in Elora, Ont. “If this occurs, your loved ones may need to make an application to the court to be appointed your power of attorney… there is already a tremendous amount of stress on those close to you, and adding the time, complication and expense of a court application would further increase the stress.”
While you could choose a spouse, sibling, child or trusted friend as a health care proxy, there are a few rules about who can take on the role. Bolt suggests contacting a local attorney to ensure there are no legal issues with your choice of proxy.
3. It’s about more than “pulling the plug”
Your health care directive includes details about what to do in a medical situation where there is no reasonable expectation of your recovery, including whether you wish to be kept alive by artificial means such as life support. Your health care proxy will also be responsible for making the decision about removing you from life support.
Martin notes the “pull the plug provision” is an essential part of a health care directive, but it only covers one aspect of a health care directive.
A health care directive will also include whether you wish to receive cardiopulmonary resuscitation (CPR); artificial nutrition or hydration via feeding tubes and intravenous fluids; blood transfusions; medications for pain, constipation or nausea that would alleviate suffering; or ventilator use.
In creating a health care directive, consider what kinds of decisions might need to be made during medical emergencies and appoint a health care proxy you feel can best advocate on your behalf. It’s also important to communicate your wishes to loved ones so there are no surprises (or disagreements) in the event of an emergency.
Martin also tries to educate clients about the differences between health care directives and physician-assisted death, explaining that a health care directive is not a green light for a doctor to help you die. Those who are against physician-assisted death should still have health care directives so their wishes to remain alive are made clear to health care providers and their proxy.
4. DIY is possible — but might not be the best idea
Most provincial governments have forms to create health care directives on their websites. You can fill out and sign the simple forms, which will serve as legal documents in the event of an illness or accident that leaves you unable to make health care decisions. Even though DIY (i.e. “do it yourself”) versions are available, it’s still a good idea to consult with a lawyer.
“Bringing a lawyer in helps to identify potential issues,” Bolt explains. In Manitoba, for example, the provincial forms allow two proxies to be named. If there’s a dispute between the proxies and no details about who should have final decision-making power, the Health Care Directives Act stipulates that, unless stated otherwise, the person whose name is listed first is given the authority.
5. Your health care directive must be kept updated
Your health care directive is a “living document” that may change over time. Bolt notes that marriage, divorce, births and deaths are all reasons to review your health care directive and, if needed, update it to reflect your current wishes. If none of these triggering events occur, it’s still a good idea to review the document every five years.
“We want to make sure that your intentions when you signed your health care directive still reflect your intentions at the present date,” Bolt explains.
6. The information should be shared
Bolt advises making copies of your health care directive. Your lawyer will keep the originals in their office and copies should be kept in your home and be distributed to your doctor and health care proxy.
You may also want to carry a wallet-sized card to let health care providers know you have a living will and a health care power of attorney (and their name) so they can adhere to your wishes.
In the event of an emergency, health care providers might not ask about the existence of a health care directive; it’s the responsibility of your health care proxy to let them know that a health care directive exists and what it stipulates about your care.