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Medically Assisted Dying and Estate Planning in the time of COVID-19

2 minute read

By now, most Canadians are familiar with medical assistance in dying, otherwise known as “MAID.” Briefly, MAID can be accessed by individuals who suffer from a grievous and incurable illness by seeking out the assistance of a physician or nurse practitioner to end their life. To be eligible for MAID, an individual must meet an extensive and rigorous list of criteria established by the federal government as well as the provincial government applicable to the individual. Legislation has also established mandatory protections for medical professionals to follow in order to administer MAID.

Since the legalization of MAID in 2016, more than 13,000 Canadians have received physician-assisted deaths, and it is foreseeable that many more will consider this option in the years to come. In early 2020, the federal government tabled legislation to amend and potentially expand the existing criteria that determine an individual’s eligibility for MAID. The government has also engaged in public consultations and issued a questionnaire to all Canadians calling for feedback on the proposed amendments.

Given the current environment of the COVID-19 pandemic, many hospital networks and physicians across Canada have redirected all available resources towards fighting the virus. In some regions in Ontario, this has resulted in the suspension of MAID programs and it remains uncertain when they will resume.

COVID-19 has also fuelled many requests to our offices for wills and powers of attorney. In working with our clients in their estate planning, we regularly receive inquiries as to how clients can include the option of MAID in their estate planning documents. A Power of Attorney for Personal Care is a legal document through which the grantor names a substitute decision-maker (the “Attorney”) and gives that individual the right to make decisions for him or her in the event that the grantor becomes incapable of making decisions about their own health and well-being.

A Power of Attorney for Personal Care may include advance directives that give the Attorney instructions concerning specific medical care and/or treatment in accordance with the grantor’s wishes when the Power of Attorney for Personal Care is in effect. Under the existing legislation, advance directives that express the wish that MAID is used are unenforceable. An Attorney does not have the legal ability to consent to a medically-assisted death on behalf of the grantor. However, your position on MAID is an important conversation to have with your Attorney and loved ones so that they know your wishes should there be relevant changes to the law.

A parliamentary review of MAID legislation is scheduled for June 2020. While it is yet to be seen how the ongoing pandemic will affect this parliamentary review, we will continue to follow the developments in this area, and if you would like advice on wills, and powers of attorney and advanced care directives, we would be pleased to speak with you.

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Anne M. Reinhart

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