The Living Will & Power of Attorney: Security for the Future

by Audrey Miller on November 25, 2009

in Articles & Blogs by Audrey, Elder Care, Estate Planning, Family Conflict, Home Care, Power of Attorney

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By: Audrey Miller MSW, RSW, CCRC, CCLCP
CARP November 17, 2009

The LIVING WILL AND POWER OF ATTORNEY: SECURITY FOR THE FUTURE

“The only normal ones are the ones you don’t know”. Perhaps a harsh statement but I would suggest that all of us have had some issues within our own families- whether it be sibling rivalry or parental conflict at some time or another. Our personalities don’t necessarily change as we age, in fact some would say that our idiosyncrasies are perhaps enhanced and maybe even more annoying to others than they were previously.
In my work with families, I see many of whom are in conflict with one another- and particularly ugly, are conflicts between siblings as it relates to care issues for their parent(s). Most often than not, money has something to do with it.
The purpose of this article is not to judge or scorn but to see if there is some way to avoid this pitfall. No matter what age we may be, if we can avoid familial conflict or at least reduce it in some way, and then a positive step has been taken.
What have I learnt?
Most often conflict exists when the parent’s wishes are not known and at the time that care is required- or at least the time that care is requested (which is often a different time frame), the parent may not be able to voice their opinion.
No matter your perspective – whether you are an adult child or a parent dealing with adult children reading this article (or both), if you have not already done son, it is a good time to start an open dialogue.
If you are not in a position to communicate it orally, then write it down- consider both a living will and a power of attorney- for both personal care and property.
A “living will” contains your written instructions about what level of medical treatment you want in the event that you are unable to express your wishes verbally. For instance, you may want all possible measures taken to keep you alive – or you could instruct that nothing be done to keep you alive. For example, a do not resuscitate (DNR) order. You could also be very specific about what treatments you want, depending on the condition you are in. A living will would also specify whether you wanted to donate your organs when you die. Living wills enable people to make their own decisions, and ensure that others are aware of these decisions which takes a great deal of pressure off family members to make difficult decisions regarding your care.
A living will is not a legal term in Canada and so it is important that once you
have drafted this document, you also draft a power of attorney for personal care who will be able to carry out the directives you have set out in your living will. The document can be drafted by a lawyer – or you could do it yourself, as long as you follow all the steps that make such documents legal in your home province or territory. You should also distribute copies of your living will to key people like family members, your doctor and lawyer and be sure to regularly review and update your living will from time to time.
A Power of Attorney is a legal written document that allows one person to act on behalf of and make decisions for a person who is no longer mentally capable to make these decisions for themselves due to an illness or injury. The assigned power of attorney becomes a substitute decision maker for the incapacitated person in 2 separate areas: Property and Personal Care. A power of attorney for property allows the attorney to be able to make financial decisions about income, property, investments etc. The power of attorney for personal care allows the attorney to make decisions about where a person lives, what they eat, safety, clothing, personal hygiene, health care and treatment. The person you chose to be power of attorney for either property or personal care must be carefully selected. They must be of an age that they will be able to handle the demands and responsibilities of acting as power of attorney. They must also be trustworthy and have an understanding of your wishes. While a power of attorney for property can be paid for their work on behalf of the person, a power of attorney for personal care cannot be paid for their services. It is important that someone you are considering to be power of attorney recognizes the requirements/responsibilities of this role and is willing to accept them.
Each province has some variation on how powers of attorney and living wills are handled. The end of this article provides links to each provinces guidelines and regulations surrounding these documents.
These are legal mechanisms in which ones’ wishes and instructions are identified and documented. I have learnt that these documentations should be drafted by a knowledgeable person and preferably a lawyer rather than the do it yourself kits.
Most of us don’t want to talk about our own demise, ill health or death. However by not talking about it, we leave much to chance or the benevolence of others- which may not serve our own interests very well.
Start the conversation. Find a way to open the door to talk about these issues before a crisis hits. It can be done gradually and informally or a family meeting
1 CBC (March 22, 2005) “Indepth Wills: FAQs” taken July 17, 2008 from: http://www.cbc.ca/news/background/wills/
2 CBC (March 22, 2005) “Indepth Wills: FAQs” taken July 17, 2008 from: http://www.cbc.ca/news/background/wills/
can be called. Write down the issues, document the decisions. Keep a binder of where important documents such as the POA can be located. Sometimes it is helpful to have a professional guide the process.

Links to Government Guides and regulations around living wills and powers of attorney:
British Columbia: ttp://www.llbc.leg.bc.ca/public/PubDocs/bcdocs/359027/rep_guide.pdf h Alberta: The Personal Directive Act http://www.seniors.gov.ab.ca/opg/PersonalDirectives/
Saskatchewan: Health Care Directive and Substitute Health Care Decision Makers Act [pdf format] Manitoba: The Health Care Directives Act Health Care Directives – FAQs Ontario: Powers of attorney and living wills – FAQs [pdf format] Quebec: http://www.justice.gouv.qc.ca/english/publications/generale/procurat-a.htm
New Brunswick: Infirm Persons Act Nova Scotia: http://www.gov.ns.ca/legislature/legc/statutes/medcons.htm
Prince Edward Island Consent to Treatment and Health Care Directives Act [pdf format] Newfoundland and Labrador http://www.assembly.nl.ca/Legislation/sr/statutes/a04-1.htm
Yukon http://www.psc.gov.yk.ca/benefits/estateplanning.html
Northwest Territories Powers of Attorney Act [pdf format]
Information taken from a CBC article “Indepth Wills: FAQs” July 17, 2008: http://www.cbc.ca/news/background/wills/

 

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