Whaley Estate Litigation Newsletter Vol.3 No. 9 December 2013 

 HOLIDAY EDITION


 

   

  

Greetings of the Season to all of our friends and colleagues from Whaley Estate Litigation, Kim, Mark, Ameena, Heather, Ben, Bibi, Deb, Leigh, Marylin and Franca. 

 

Thank you for your continued feedback, comments, enquiries and contributions that you wish to share: 

 

Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Proceedings
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Substitute Decisions Act, S.3 Counsel
  • Mediation

Kimberly A. Whaley
Whaley Estate Litigation

 

 

I. WEL NEWS

1. 
LSUC 16th Annual Estates and Trusts Summit, November 12, 2013

 

Kimberly Whaley spoke with a number of colleagues at the 16th Annual Estates and Trusts Summit and presented her paper: "Spousal Claims Against Estates and Other Claims Arising out of Re-Marriages"

 

Link to paper

 

2. Benjamin Arkin OBA Sole, Small Firm and General Practice, November 26, 2013

 

Benjamin Arkin chaired the OBA program: "Limited Scope Retainers: You're Doing Them Anyways, Now Do Them Right"

 

Link to program and materials

 

3. OBA Young Lawyers Division,- Clients, Clients Everywhere: Essential Tips for Aspiring Rainmakers, November 15, 2013

 

Kimberly Whaley spoke on: "Developing your Brand"

  • Ensuring your brand sets you apart from others
  • Developing your strategy
  • Getting attention for your brand
  • Maintaining momentum by maintaining a focus on marketing throughout your career

 Link to Program Information

 

4. Kimberly Whaley and Heather Hogan wrote a paper on "Financial Abuse of the Older Adult: Are We Doing Enough?"

 

Link to paper

 

5. Money and Family Law

 

Kimberly Whaley's paper "Spousal Claims Against Estates and Other Claims Arising out of Re-Marriages" is being published in Money and Family Law, December 2013.

 

6. JUST Magazine

 

Kimberly Whaley's article: "Court Cautions against Boilerplate Language in "End of Life" Clauses in Powers of Attorney for Personal Care" is being published in JUST Winter 2014 issue.

 

7. LAW TIMES 

 

Kimberly Whaley was published in an article for the Law Times Supplement, December 2013: "What is Elder Law?"

 

8. LAW TIMES

 

Heather Hogan was published in an article for the Law Times, Legal Resource Guide, December 2013, Estates and Trusts on: "Guardianship"

 

9. LAW TIMES

 

Kimberly Whaley was mentioned in the Law Times article by Michael McKiernan: "Decisions Show Need for Greater Attention to Undue Influence", October 21, 2013, Issue 33

 

Link to article (requires subscription)

 

10. Ameena Sultan

 

Welcome back to Ameena Sultan who has returned from leave. 

 

 

 

View Ameena's profile on the WEL website

 

11. University of Toronto

 

Kimberly Whaley will be a guest lecturer at the University of Toronto, on January 27, 2014, speaking on: "Financial Issues - What's Money Got to do With It?" and on March 3, 2014, speaking on: "Capacity! Understanding and Assessing - Yours and Theirs".

 

12. CBA National Health Law Section and the National Elder Law Section

 

The webinar "Health Care Post Rasouli Case - Who Decides End of Life?" has now been rescheduled to December 17th 2013, from 12:00 - 13:30 (Eastern). Mark Handelman will be presenting.

 

II. OTHER NEWS: WHAT ARE OUR COLLEAGUES UP TO? 

 

1. Albert Oosterhoff, Professor Emeritus, Western University

 

Our colleague Albert H. Oosterhoff was published in the ETPJ (2013), 33 E.T.P.J. 24, on "Predatory Marriages".  In his article, Albert Oosterhoff calls for law reform akin to the reform initiatives of Alberta, New Brunswick and certain U.S.A. jurisdictions.

 

2. Robert Grimes, Barrister-At-Law, Ireland

 

Robert Grimes, a Barrister-At-Law, in Ireland, and fellow STEP member visited our office this month and gifted us a copy of his publication: "Irish Probate Practitioners" Handbook" co-authored with Karl Dowling, published by Round Hall.  
 
A link to this publication: http://www.roundhall.ie

 

This book comprises 15 chapters referencing relevant statutes, cases, practice directions and rules applicable to Irish Probate. It is interesting to draw on the similarities in issues developing which are contentious in nature. It is also interesting to read about the legal framework for mediation which appears to be a new mediation landscape developing in Ireland. The book mentions new developments in the Mental Capacity Bill 2012, which was recently summarized in a blog by Heather Hogan. (view blog)

 

III. LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

1. 
Easingwood v Easingwood Estate,
     http://canlii.ca/t/fx45d, British Columbia
 

Kimberly Whaley

 

This is an appeal by a plaintiff from a judgment reported at

Easingwood v Easingwood Estate, 2011 BCSC 1154, 2011 CarswellBC 2297, 71 E.T.R. (3d) 141 (B.C.S.C.), (CanLII), http://canlii.ca/t/fmsck
, granting: an application by trustees for summary judgment dismissing an action against them, and a declaration that a Deed of Settlement whereby a trust was created as legally enforceable, a binding instrument; and a dismissal of the relief sought by plaintiff.

 

Primarily, the appeal concerned the validity of estate planning steps taken by attorneys under a valid enduring power of attorney made by Reginald Henry Easingwood, deceased (the "Deceased"). As a result of steps taken by the attorney, most of the assets of the Deceased had been placed into an inter vivos trust, mimicking the terms of the Deceased's Last Will and Testament thereby striving to protect the value of his assets from probate fees and tax consequences on death.

 

The widow challenged the creation of the trust and sought an order under BC legislation, the Wills Variation Act, http://canlii.ca/t/520w6, in her favour.

 

The judge at first instance, found that the power of attorney gave two of the Deceased's children the power to create the trust, and that they were not in breach of their fiduciary duty in creating such a trust; that the transfers of the assets of the trust were not considered to be a fraudulent conveyance.

 

The appeal generally addresses the following issues:

  1. Did the power of attorney authorize the attorneys to create an inter vivos trust in circumstances of mental incapacity of the settlor;
  2. If so, is the trust testamentary in nature and beyond the capacity of the attorneys; and
  3. If conceptually within the capacity of the attorneys, were the terms of this inter vivos trust consistent with their fiduciary duties under the power of attorney.

Circumstances of the Deceased and his widow were that this was a second relationship for both of them, each having their own adult children.

 

They married in December 1983.

 

They entered into a marriage agreement both acknowledging that they each had individual assets acquired from the relationships of their former respective spouses and that each desired to retain and maintain that individual estate as separate property.

 

The Deceased signed an enduring power of attorney naming his children as his attorneys.

 

The judge found that the widow knew of and approved of this instrument. The power of attorney document required the attorneys to act together and made no provision for survivorship in the event that one of them was unable to act.

 

Shortly thereafter again, the Deceased's mental acuity was described to have been slipping.

 

In March 2004, the Deceased's executed a Last Will and Testament appointing his children as executors.

 

The Will provided that the residue of the estate should be divided amongst the Deceased's children and grandchildren and the validity of the Will as not challenged.

 

Shortly thereafter the Deceased was diagnosed with cancer and his health was declining.

 

The challenge commenced by the widow was not one of a Will challenge, but she sought to challenge the creation of the trust as well as the transfers of the Deceased's assets to that trust.

 

There was some analysis made as to the effect of the power of attorney document which was stated to be an enduring power of attorney, surviving incapacity.

 

In the appeal court's analysis, the power of attorney document had been executed in accordance with the statutory regulations, it was enduring, it was general, and it was unlimited on its face. The court stated: [1]

 

"In general terms, unless there is an external impediment to the creation of the trust, it was within the attorneys' power to create an inter vivos trust because it was within the Deceased's power to do so at the time"

 

The widow argued reliance upon the cases of Bank of Nova Scotia Trust Co. v. Lawson (2005), 22 E.T.R. (3d) 198 (Ont. S.C.J.), and Zimmerman v. Fenwick, 2010 ONSC 2947 (CanLII), 2010 ONSC 2947, 57 E.T.R. (3d) 101.

 

However, the court opined that neither Lawson, nor Zimmerman, constituted examples of the broad propositions advanced by the widow.

 

In Lawson, the Ontario Superior Court of Justice considered the variation of a trust created by the Deceased and his wife to manage the disposition of their estate. The variation was executed for the wife under a power of attorney.

 

The court did not object to the variation on the basis that it dealt with a trust, but rather on the basis that the variation was testamentary in nature because it altered the arrangements made by the donor for disposition of assets on his death and so was contrary to the Substitute Decisions Act, which prohibits the making of a Will through a power of attorney. Lawson, therefore, did not concern an attorney operating through a trust in terms conforming to the testator's testamentary dispositions [2].

 

In Zimmerman, the court had declined to find that the attorney acted improperly, saying that the issue of capacity to settle the trust was not before the court.

 

In Easingwood, the judge at first instance relied on Banton v. Banton, (1998), 164 D.L.R. (4th) 176 (Ont. S.C.J.), aff'd 53 O.R. (3d) 567 (C.A.), and the court stated as follows:

 

"In Banton, a power of attorney was used to create a trust wherein the assets were held for the benefit of the donor, with the remainder interests in favour of his family, including the two attorneys. The terms of the trust conflicted with the disposition that would have occurred on an intestacy. In Banton, the judge observed that a general power of attorney is sufficiently broad to allow the settling of an inter vivos trust, but disapproved of the gifts of the remainder interests, which did not track the events that would otherwise occur on the donor's death. In the judge's view, the terms of the trust would have been appropriate had the funds been payable on the donor's death to the personal representative in trust for his heirs."

 

Accordingly, the Court of Appeal opined that it did not have any authority that concluded as a matter of law, that the attorneys operating under valid general power of attorney may not create an inter vivos trust, or transfer to such a trust assets held by the principal, and therefore concluded that on the plain reading of the power of attorney, an attorney may do so, provided the trust created does not otherwise step into the territory prohibited by other general principles of law or statutory propositions. [3]

 

Further noteworthy analysis by the Court is reproduced as follows:

 

[48]        Mr. Justice Krever, in Nicholls, in the context of powers of appointment and after review of authorities and literature, acknowledged a general prohibition against delegation of testamentary power. An application of this understanding is found in Desharnais v. Toronto Dominion Bank, 2001 BCSC 1695 (CanLII), 2001 BCSC 1695, 42 E.T.R. (2d) 192 (appeal allowed on different grounds, 2002 BCCA 640 (CanLII), 2002 BCCA 640). There, Mr. Justice Clancy found the change of a designated beneficiary of an RSP account was testamentary in nature and therefore invalid.

 

[49]        It is clear, I consider, that an attorney may not make a testamentary disposition. As expressed in the authorities just cited, amongst other problems encountered, doing so runs afoul of the Wills Act, R.S.B.C. 1996, c. 489. Lawson fairly explains this rule as safeguarding the true wishes of the testator as to dispositions after death.

 

[50]        The question, then, is whether the creation of the trust in this case is a testamentary disposition and therefore beyond the capacity of the attorneys. We have not been referred to any case similar to the present, accepting for the purpose of this discussion that the terms of the trust, as the judge found, echo the terms of the will. (I will deal with Kay's criticism of the judge's conclusion that the two documents are coincident, under the issue next addressed.)

 

[51]        A testamentary disposition is one that is dependent on death for its vigour and effect. So, for example, in Wonnacott v. Loewen 1990 CanLII 976 (BC CA), (1990), 44 B.C.L.R. (2d) 23, 37 E.T.R. 244 (C.A.), this court affirmed that where a document creates a trust that takes immediate effect, even though not performed until the death of the settlor, it is not dependent on death for its vigour and effect and is not testamentary. See also Anderson (Administration of Costello Estate) v. Patton, [1948] 2 D.L.R. 202 (Alta. S.C. (A.D.)). In Waters' Law of Trusts in Canada, 3d ed (Toronto: Thomson Canada Ltd., 2005) at 208, the learned author summarizes the law in Canada:

 

The well-known words which set out the test to be applied determining whether a trust is testamentary are those of Sir John Wilde in Cock v. Cooke: "It is undoubted law that whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death and it is dependent upon his death for its vigour and effect, it is testamentary." This was interpreted by Frank Ford J.A. in Corlet v. Isle of Man Bank Ltd. to mean that if the document creates a trust which takes immediate effect, though to be performed after the death of the donor, it is not dependent upon his death for its vigour and effect. This has been followed on later occasions in Canada, ...

 

[52]        The trust in this case was fully established by the trust documents, and was not dependent upon Reg's death for its efficacy. The three certainties were met, and the trust, by its terms, was irrevocable. In my view, this brings the inter vivos trust fully within the description of "immediately effective", and therefore it is not testamentary.

 

[53]        I recognize that this conclusion is at odds with the result of the trial decision in Lawson, but Lawson, as I have said, turned on the application of the Ontario statute.

 

[54]        In reaching this conclusion, I do not put an inter vivos trust, fully created, as one beyond challenge by those who consider themselves aggrieved by its creation. Where, for example, a trust created by an attorney has the effect of adding beneficiaries not named in a will, or avoiding a gift established by a will, or disposing of assets where the principal has chosen not to make a will and the estate would be divided as provided in an intestacy, the trust may well be challenged, e.g., under the rubric of the attorney's duty to conform to the intentions of the principal. That is, the issue of breach of fiduciary duty would loom large. All of these questions are live questions, requiring the determination of facts in a particular case.

 

[55]        My conclusion on the issue of the validity of an inter vivos trust such as this, created by an attorney, putting the principal's assets into the trust, is simply that there is no rule in law prohibiting that creation. Further, as commented in cases such as Mawdsley, and O'Hagan v. O'Hagan, 2000 BCCA 79 (CanLII), 2000 BCCA 79, 183 D.L.R. (4th) 30, tax planning including "estate freezes" may be prudent and, in the large sense, in the best interests of the principal.

 

[72]        I do not disagree with the principles stated by Kay. However, 

the argument must fail, in my view, in light of the findings of fact of the judge. In addition to para. 40 (dealing with Lawson)  and in para. 59: "The Trust here reflected perfectly the terms of Reg's will. The Trust was established so that the gross value was always to be as if all of the assets remained in the estate. The Fund and the House Operation Fund were to be the same amount as if there was no Trust. The disposition was contemplated and approved by Reg through his will which Kay knew about. It was not a situation as in Banton where the assets were distributed contrary to the stated wishes of the donor. Nor is this a situation where the attorneys used the power for their own benefit without the knowledge of the donor]"

 

the judge said:

 

[39]      In this case, Hank and Lauren were legitimately concerned that they would be unable to act together as mandated in the Power of Attorney because of the likelihood that Hank would predecease Reg. Reg had always relied upon Hank's advice and clearly counted on him to fulfill his wishes. Kay knew that Reg relied upon Hank and that Reg had given authority to Hank and Lauren to manage not only his property but himself through the representation agreement. This fact is significant to Hank's and Lauren's reasoning that establishment of the Trust was in keeping with Reg's wishes as to who would manage his affairs and as to avoidance of a committeeship application. Certainly, the expression of Reg's wishes as to who would manage both himself and his affairs would have weighed heavily in any committeeship application, especially when Hank and Lauren had taken over management of Reg's affairs with Kay's agreement in 2007.

...

[41]      The attorneys were entitled to take advantage of estate planning advice and to establish the Trust as an estate planning tool (Mordo v. Nitting, 2006 BCSC 1761 (CanLII), 2006 BCSC 1761 at para. 381). In the circumstances here, it was reasonable and proper to create the Trust to effectively manage Reg's affairs because the Trust did not go beyond what Reg himself had contemplated.

 

[77]        The key question is in which direction the best interests of the principal lie. Here, the principal was a man of business who had executed a will that complied fully with the terms of a marriage agreement. The trust, in turn, is entirely consistent with the marriage agreement, the will, and business prudence, and the trust secured the principal's assets for his use during his lifetime. It would be a fiction to say the attorneys were acting in breach of their duty to their principal in the creation of the trust, when it conforms to all the arrangements the principal had made.

 

[78]        Kay raises the spectre of advantage gained by the attorneys through a share of assets which are enhanced in value by the tax savings. There is, as contended, a requirement that the power of attorney must be used for the donor's benefit and not the attorneys' benefit. That does not mean, however, that where there is benefit to attorneys, such as in preserving the value of assets, while fully meeting the obligation to secure the best interests of the donor, the attorneys may not take a prudent step. Here, the 'benefit' arose by operation of the Income Tax Act, and was in reality a benefit to all possible beneficiaries - not only the attorneys. Further, the judge was satisfied, on the evidence, that the attorneys complied with their duty to Reg. This was a fact-sensitive enquiry, and one with which we should not interfere, in my view.

 

[79]        On my review of the record and the findings of fact by the judge, there is no basis, in my view, to interfere with the conclusion that no breach of fiduciary duty was demonstrated.

 

[81]        This submission is directed at the reasons of the judge and not to the order upholding the trust. There being, on Mawdsley v. Meshen, no basis to set aside any transfers to the trust as a fraudulent conveyance, and otherwise no basis to declare the trust invalid, I do not consider we should address this proposition, for to do so invites interference with proceedings in the Supreme Court of British Columbia that are still outstanding.

 

[82]        For these reasons, I would dismiss the appeal.

 


[1] Easingwood v Easingwood Estate, para 37

[2] Easingwood v Easingwood Estate, para 40

[3] Easingwood v Easingwood Estate, para 44

 

 

 

2. GUEST ARTICLE FROM Dr. MICHAEL GORDON 

 

The following article was provided by our colleague, Dr. Michael Gordon, MD, MSc, FRCPC, Professor of Medicine in the Division of Geriatrics at the University of Toronto; Medical Program Director of Palliative Care and Former Vice President of Medical Services and Head of Geriatrics and Internal Medicine at Toronto's Baycrest Geriatric Health Care System.  It's an insightful article on End-of-Life-Decisions: One Doctor's Perspective.


"WHO CAN YOU TRUST WITH YOUR MOST IMPORTANT END-OF-LIFE DECISIONS: LESSONS FROM THE ONTARIO COURT OF APPEAL?"

 

by Dr. Michael Gordon

 

Introduction

 

It is almost a given that older individuals invariably appoint their children to be their substitute-decision-makers when they set out to create a Power of Attorney for personal care, whether or not it includes an advance directive, known colloquially as a living will. [1] The understandable assumption is that who better can you trust to fulfil your most important decisions about end-of-life care than your most cherished family members? It is one thing if you have never communicated your wishes to your children; something I suggest is a serious failure of critical communication; it is another if after expressing your deep-felt wishes your children choose to re-interpret or apparently ignore your expressed instructions for their own personal reasons or values.

 

What One Might Expect from Family Substitute Decision-Makers?

 

All practitioners in the field are aware of or have had experience with the unfortunately common phenomenon of what family therapists may refer to as "dysfunctional families" of which there is a wide spectrum. The fact is that varying degrees of family strife and conflict are not uncommon. It is generally believed that with apparently fully functional and ostensibly loving and respectful families, when important decisions have to be made such formally or informally expressed wishes and values will be respected and heeded. It is less often anticipated but happens in practice that apparently loving and devoted family members, acting in the role of substitute decision-makers become dissociated from those they are supposed to represent and couch their decisions in terms of moral distress and personal psychological conflict. This concept of "moral distress" is more commonly used to describe conflicts that occur when health care professionals find that they are acting out on decision-making processes that conflict deeply with their professional and personal values and are powerless to intervene to change the decision.

 

Prototypical Cases

 

I have had cases in which the expressed wishes of the older patient that I and my colleagues were asked to comment on were what appeared to be clearly expressed and documented but were over-ridden or ignored by apparently loving and devoted children. A commonly repeated scenario is that an older person writes a living will in the presence of a responsible legal advisor and has consistently indicated a mentally competent wish to not have a permanent feeding tube provided under defined circumstances. Yet, the children end up requesting that such a tube be inserted even in the face of the apparently contradictory instructions. This often occurs in a circumstance of late-stage dementia or other brain diseases in which the level of mental interaction with those the person loves will never return to any semblance of function indicated to be acceptable to them or one that was acceptable to the person who gave the advance directive to not undertake such an intervention.

 

Case Study

 

In a recent Ontario ruling by the Consent and Capacity Board, released on June 14, 2012 it was deemed that the Power of Attorney for Personal Care signed by the patient in question almost 10 years prior to the hearing at a time that there was no claim by any of the parties that she was not capable of drafting the document. In the intervening years, the individual, known in the CCB hearing as FF (hearing TO-12-0289 and TO-0290) gradually developed dementia and required assistance in all of her activities of daily living. Tragically while in Florida for the winter with her personal support worker, she accidentally apparently inhaled some food which by the time emergency help came and assisted in expelling she had experience significant brain anoxia and did not recover significant consciousness. In the hospital in Florida, prior to her transfer back to Toronto, she had a feeding tube inserted to provide her the means of nutritional support as well as a tracheostomy to assist in maintaining her airway.

 

She eventually was transferred to Baycrest Hospital and as the ruling of the Capacity Board indicated, soon after admission the family produced an advance directive dated approximately 10 years previously which they claim they had not been  aware of previously that included among other expressions of wishes the following instructions, "I hereby instruct that if there is no reasonable expectation of my recovery from physical or mental disability, I be allowed to die and not be kept alive by artificial or heroic measures. I do, however instruct that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life." [2]

 

Witnesses were brought forth by the family including Rabbis attesting to her orthodox life practices and the expectations in Jewish Orthodoxy that artificial nutrition and hydration are not heroic measures. Rather than being conceptually artificial in the sense of a medical intrusion, such feeding methods would have to be considered part of normal and compassionate care; discontinuing such nutritional support would be contrary to the tenets of Judaism which they believe would have been important to her and which she embodied in all aspects of her life.  Her children suggested reasons that were presented by their lawyers of why she might not have understood at the time she was questioned. The lawyer who executed her advance directive gave testimony that her "normal" practice was to explain the details and implication of all instructions and despite the inability to recall the exact words used, the absence of any provisos indicated to her that the client FF (now the patient in question) understood what was written and what she signed; her religious beliefs did not seem to be a factor in her decision-making at the time of execution.

 

The CCB came down in favour of the request by the attending physician on behalf of Baycrest Hospital to be allowed to discontinue the treatments in the medically most humane manner possible. The family appealed the ruling which meant that for a number of months treatment as prior to the CCB continued.

 

The Ontario Superior Court of Justice handed down their ruling on April 3, 2013 (Friedberg et al vs. Korn: 03-58/12). After hearing the evidence from both sides and reviewing the rationale expressed in the CCB's decision the judge ruled that the CCB had erred in a number of its assumptions and interpretations including the following points:

 

The patient in question may not have truly understood all the implications of what she signed due to language issues;

 

The lawyer who presided over the creating and signing of the Power of Attorney for Personal Care (PAPC) could not definitely document what was discussed specifically with FF and therefore her "normal" practice may not have captured important and subtle nuances that may have affected the decision to sign the document without for example discussion details of potential religious implications nor the true implications of terms such as heroic and artificial.

 

The issue of the patient's life-long adherence to her orthodox Judaism was accepted as an important factor that was not sufficiently taken into account by the CCB because it was not mentioned specifically in her PAPC but it was thought that the claim by the family of her religious characteristics for her whole life could not be ignored and in a sense dismissed because not specifically noted in the document. A life of historical consistency seemed to have important sway on the court's decision.

 

The other issue focused on the meaning and implications of terms such as heroic and artificial; it was agreed by the physician that at the time of the procedures being undertaken one might have classified them in those terms. It was argued that the heroic aspect of maintaining the tubes in place was likely long passed as they were causing no particular discomfort or harm. As for understanding the word artificial, the argument returned to the very well-known tension between those, primarily from the religious world, and those from the secular and medical world who see nutrition provided by a feeding tube as an artificial intervention as any other mechanically-based medical treatment, rather than as part of the normal obligations  to a patient to provide them with life- sustaining nourishment and fluids.

 

At the end the Court ruled in favour of the evidence of the children and relied on the evidence of the solicitor  and therefore against the physician and institution and overturned the ruling of the CCB so that the patient continues to receive nourishment through a feeding tube, has a tracheostomy to facilitate the patency of her airway and receives treatment for inter-current illness such as infection with antibiotics. She continues to be in a minimally aware or alert state. [3]

 

Discussion and Implications for Future Advance Directives and the Health Care Consent Act 

 

A great deal of effort, support and encouragement has accompanied the creation of Ontario's Health Care Consent Act and  the jurisprudence that governs issues of consent to medically treat in other provinces The underlying ethical principle for this major piece of health-related legislation is the foundational principle of autonomy as originally outlined, described and virtually embedded into the practice and values of North American ethics  since the release of the first edition of Beauchamp and James F. Childress classic text Principles of Medical Ethics in 1977 with the latest 6th edition having been released in 2009. The reason that this book had such a profound effect on the medical and subsequently ethics and legal communities is that for the first time since ethics entered into the practice of medicine, the classical and traditional primary ethical foundational principles of non-maleficence and beneficence, which in essence were held closely in the hands and culture of the medical professionals, was transferred to the patient.

 

By formally allowing for and in essence requiring patients to provide consent to all medical interventions, the dominant role of the physician was modified to a more collaborative and supporting role, even as an expert than in the previous centuries of medical practice. I changed forever the way decisions about how medical care would be made in the future. It has been a slow evolutionary process but in contemporary North America there is virtually no health care practitioner who would undertake any clinical activity without first obtaining a proper informed consent to treatment or because of situations of necessity for which there are definitions for extenuating circumstances.

 

Consent to treatment is the natural consequence and legal translation of the ethical principle of autonomy [4] as it is the way that an individual can manifest their personal values, choices, characters, belief systems and other aspects that impact on why people make the decisions they do.  (Prior to the world of consent, it was physicians and through them or via other professional dictates who determined what treatments would occur through their superior knowledge, beneficent nature but also by dint of their professional standing, respect and the fact that law in general virtually always sided with a physician's best, considered, and professional opinion. (5): any physician old enough to recall practice in the era prior to the autonomy movement or from jurisdictions that this is not well developed will understand the power of the physicians opinion in patients' decision-making. That "consent" may have been required, the actual process of getting it fell far short of what discussion and explanations are currently expected to occur.

 

The Development of the Advance Directive Concept

 

Once informed consent was established as a requirement for treatment and became universally practiced, and as an outcome of advances in medical technology, some formulae had to be developed to assure that necessary and life-saving treatments could take place in the face of the impossibility of getting consent because of the inability of the person involved (the patient) to provide it. This is where the doctrine of necessity always has and still does apply. As well, the age-old informal practice of turning to family members or close friends to provide substituted consent was merely an extension of the ancient practices that parents would have over their children and in many jurisdictions that husbands would have over their wives. With consent becoming integrated into care decisions, the concept of substituted consent also was required for those for whom decisional-capacity was not existent or not possible because medical conditions such a loss of consciousness or mental disease and dementia clouded the decision-making abilities of some individuals.

 

With the advent of Cardio-Pulmonary Resuscitation (CPR) in the early 1960's it took only a few years before it became not just almost universally available in North America but began to be deemed part of the obligatory standard of care especially in the acute hospital setting. Yet, many clinicians began to observe that from what seemed to be a life-rescuing intervention under very defined and special circumstances, it had virtually morphed itself into what many believed was an end-of-life ritual that was hard to decline either for what was perceived to be ethical and clinical reasons and for others for medico-legal reasons. The idea of "letting someone die" who could be potentially saved, became virtually anathema in the acute care setting. The media responded with depictions of CPR with not just an over-dramatized impression of its success but when looked at objectively a highly inflated success rate which is what the public began to believe was the case. When applied virtually universally, it became clear to health care practitioners on the front line- that many individuals of all ages and stages in life had medical conditions in which the process of dying was the most that one could expect, who were subjected to CPR as their last medical rite of passage, rather than being allowed to die peacefully. It became such a well-recognized issue that a virtually subterranean practice of the "slow-code" developed which fulfilled the appearances of CPR without truly exposing the dying patient to the true indignities of the CPR chest pounding, often rib-breaking process.

 

Eventually through a combination of lobbying by enlightened medical practitioners, lawyers and legislators, the first advance directive, the DNR order came into being. Many hospitals developed their own individual policies about its implementation but once the law allowed for it, discussions about DNR orders began to be part of the conversations between very ill individuals and their treating doctors. Safety valves existed so that people who might potentially benefit from CPR were not deprived of it because the conversation did not take place, but a new psychology was developing in North America; asking the patient before performing a medical act if that was acceptable to them, asking a patient at risk of a cardiac arrest if they wanted CPR should it occur and allowing individuals under both situations to refuse the medical intervention for whatever reason they had as long as there were deemed capable of making such a profound decision. [6]

 

The Role of the Power of Attorney for Personal Care (POAPC) and Attorney or Proxy for Personal care (Substitute Decision-maker)

 

With the need for consent for most medical undertakings and the major advances in medical technology it became abundantly clear that there would always be individuals for whom consent should be obtained who were not able to provide it in a timely fashion; in emergencies physicians were allowed to act according to Common Law established precedents and in the new legislative initiatives, but in the face of the inability to give consent the need developed for a robust system of determining who could give consent on behalf of another person or refuse consent based on established criteria. The duties of the Attorney for Personal Care (Proxy or Substitute Decision-Maker SDM) became defined more clearly and ultimately in Ontario for example became embedded into law with the Health Care Consent Act of 1996 (last amended in 2010). 

 

In this Act, not only are the criteria for action or defined in detail comprising most possible circumstances with some degree of flexibility to assure that all decisions that have to be made can be made, but within the Act was the provision of allowing the SDM to follow advance directive instructions provided by an individual as long as the instructions at the time that they were given reflected a capable decision. Thus was generated the concept of the advance directive through which an individual by appointing an SDM could have their wishes fulfilled sometime in the future by the person appointed by them to and by the content of the Advance Directive which presumably reflected the wishes of the person at a time that they were capable of considering and expressing such health-care related issues. [7, 8]

 

Formulation of Advance Directives

 

An advance directive is merely a tool that should be part of what is often called advance care planning. With the complexities of new medical technologies and the increased growth of the aging population and with an increase in the prevalence of cognitive impairment and dementia, it is becoming clear to all concerned that some level of discussion, planning and documentation might decrease the likelihood that someone will receive treatments that they would prefer to forgo. The Ontario Health Care Consent Act attempts to assure those involved in their advance care planning and those that wish to assist family members or assure within the framework of the law that such wishes will be respected often recommend that an advance care directive be in writing, even though it is not required by law. The main problem with the lack of a written document that outlines one's preferred wishes is that verbal instructions might be challenged if those responsible for fulfilling their legal duties are in disagreement about what was said or intended by the verbal advance care request.

 

The other important factor that is often forgotten in the advance care planning process is that the advance care plan is merely the communication of the persons' preferences which are then to be interpreted and in essence translated into an actual care plan based on the clinical circumstances at the moment that the decision for treatment has to be made. The advance directive is not a substitute for consent to treatment or refusal, but rather a statement of preferred wishes to the person(s) responsible for consenting to or forgoing an individual treatment undertaking. Advance care directives cannot "demand" a treatment that is not part of the protocol or valid clinical options in a given therapeutic situation, but it can instruct the SDM to refuse a treatment even in the face that the particular treatment has a substantial likelihood of success in the same way that a competent person can make that choice.

 

Relevance of the CCB and Superior Court Rulings in this Case

 

Under normal circumstances the advance care document that was provided to the health care staff in essence "after the fact" had given instructions to the SDM which in fact was shared equally by FF's three children. According to the law they would have to agree together on the decisions related to treatment and if not some adjudication process might be required. This was not the case.

 

It is known that sometimes children claim, that even in the face of a very clear instructions about not wishing permanent artificial nutrition and hydration (feeding tube) in a well-documented living will that they "cannot bring themselves to make that decision" or that they "could not live with themselves in making such a decision". In such situations cases may end up being referred the legal tribunal that adjudicates such situations. Sometimes, as in the current case, even in the face of a decision that upholds the living will instructions, the family pursues all other legal means possible to allow them to not carry out the wishes of their parent- and these presumably are from families that espouse love and devotion as the reason for their failure to follow the instructions.

 

What is the solution short of designating a non-family member that one can trust as one's substitute decision-maker, someone who is not intimately involved emotionally in the necessary decisions? It is at minimum to discuss with one's loved ones the wishes and substance of the SDM and have them provide assurances as much as anyone can that they understand what is being asked of them and that they are willing and able to respect those wishes even though the wishes may be in conflict with their own beliefs and values and emotional capabilities. As one can imagine that is a very difficult discussion for most family members to have.

 

Guidance for lawyers carrying out the creating of an Advance Directive

 

The ruling of the superior court in this case should give pause to those lawyers whose practice includes the creating of advance directives. The lawyer in question who created FFs advance directive claimed that she "always" had the same conversation with clients and had a template that she used to make sure all the issues of importance were discussed and that the person read the document so when signed she was sure they understood it. The superior court was somewhat critical with her process in that it could not on the individual basis of the discussion with FF and the process that went into the explanation of the meaning of the terms being used, be  certain that FF really understood and appreciated the terminology used in the document as was claimed by her children. Even though good arguments were made as to the validity of the assumption that FF did understand the language and the meaning of what she was signing the judge accepted the doubt that perhaps that this was not the case and thereby over-ruled the decision of the CCB which raises serious questions about the weight put on advance directives by most individuals, lawyers, physicians and ethicists.

 

Does the Rasouli case have anything to add to this conundrum of law and ethics?

 

The recent ruling the Ontario's Rasouli case which made it to the Supreme Court of Canada has allowed for an SDM to refuse the designation of her husband in a minimally conscious state already for almost two years, and who requires treatment in an intensive care unit (ICU); The rationale in essence focused on the need for consent to have the mode of treatment changed from intensive care to palliative care as deemed clinically appropriate by the treating physicians which according to the Health Care Consent Act could be refused by the SDM based on her understanding of his strongly held religious beliefs. [7, 8]

 

Unlike the current case in question, there was no advance care plan not advance directive, but the word of the SDM and evidence to the patient's over-whelming religious beliefs. Even had and advance directive existed it might well have contained words to the effect that "all efforts must be continued within the spirit of my religion to keep me alive under all circumstances" (there are many religious people that adhere to the sanctity of life precept. Of course the concern of the medical profession and many ethicists and health care administrators is that such a basis of decision-making can make it almost impossible to discontinue what is believed to clinically non-beneficial therapies if they conflict with religious values of instructions. The previously well-reported Golubchuk case from Winnipeg Manitoba has a lot in common with the Rasouli case. In June, 2008, after seven and a half months on life-support, Samuel Golubchuk died of natural causes. But this was after a very heated conflict between individual physicians and the patient, his family and their lawyers and the hospitals administrators and the College of Physicians and Surgeons of Manitoba. That he died before the case move up the legal ladder means a ruling about his situation will never be known. [9] The Rasouli case in Ontario however has many issues in common with the Winnipeg case.

 

Why Have A Health Care Consent Act?

 

Of great interest to all those involved in end-of-life care and planning and dealing with patients and their families is an assumption if one takes the time and effort to undertake an advance directive or living will as it is colloquially called it is assumed that those instructions and wishes will be respected. It would be very prudent for anyone making such an undertaking to discuss the content and the wishes with those who are expected to carry out the directions so that there is no misunderstanding as to what is meant by the statements often used in such directives. If at the end of all of these steps it becomes known that there are ways around such carefully thought out instructions through various legal attacks it might become less compelling for individuals to take the steps to outline their wishes.

 

Guidelines for A New Advance Directive Process

 

There have been many attempts to create advance directives that truly capture a person's wishes and values so that anyone trying to adhere to them will have little in the way of doubt as to their meaning. One such attempt that gained a good deal of popularity and traction in Ontario some years ago was the Let Me Decide kit developed by geriatrician Dr. William Molloy. [10] For Lawyers who are committed to helping their clients achieve their goals, it might be prudent to take the following steps at least in order to assure that their wishes are clearly expressed, that those that might have to carry them out know about them and are willing to do so, that the language used is clearly understood by the client and that issues that might be brought up in any challenge to its content will be addressed by the document and the process of providing, reviewing, accepting and signing it Some might suggest that in addition to the suggestions below, a video recording of the whole process might provide the best assurance that one's wishes when the time comes are being respected:

 
1. Document the meeting with the client and in detail the issue of an advance directive that was discussed;
 
2. Explore the salient wishes of the client that is requested to be included in the directive and the main philosophy behind those wishes  (no suffering, not to prolong life if no chance of return to level of function that will allow for socialization, communication, enjoyment of food taken through the mouth etc.[11];

 

3. Document if there are any religious considerations that should be taken into account and if not state clearly that no religious dictums, practices or traditions should be brought into play on the treatment decisions that are being considered;

 

4. Refer client to a physician or more than one physician depending on the circumstance to do two specific things:

  

a. Assure the client (patient) and lawyer that the person is capable of making an advance directive

  

b. Explain the medical meaning of terms so that when instructions are being given vague or euphemistic terms such as heroic are not used but specific interventions are prohibited such as artificial nutrition and hydration ( specially call it feeding of liquid foods through a feeding tube inserted directly into the stomach) and stipulate if that means on a permanent or on-going basis or temporary because of an inter- current illness or surgery which might be the case [12]

  

5. After the document is complete and edited properly or if one of the pre-printed forms is used such as that provided in the Let me Decide kit or other pre-printed form review its content, have the client sign it and in the notes of the file, indicate that the client reviewed the document and could explain in clear language what was being requested and attest to that in the file and if a video recording is used on the video itself.

 

Conclusion

  

The concept of the advance care planning through verbal or written advance directives is very attractive for those who desire to maintain some element of control over their final period of life. For those with strong feelings about limitations to medical treatments in an era of apparently endless technologies, an advance directive might provide solace that an end can be expected and organized that will be as natural as possible without unnecessary suffering or unwanted prolongation through the application of medical technologies.

  

To discover that the law doesn't necessarily support normal and what most people would deem adequate steps to assure that such wishes are respected is very disquieting. For physicians and lawyers who generally recommend to our patients and clients that an advance care plan and advance directive might achieve their end-of-life goals, it may be necessary to rethink the process to assure our collective selves that those to whom we in good faith entrust our wishes will not be able to find ways to ignore them whether for their own purposes or presumably for the apparent benefit for the person on whose behalf they are supposed to be acting.



References:

 

1. Advance Care Planning. Advocacy Centre for the Elderly (ACE) - link

 

2. The Health Care Consent Act: S.O. 1996, chapter 2, schedule A, as amended AND IN THE MATTER OF FF ( TO-12-0289, TO-12-0290) - link

 

3. Friedberg et al v. Korn, 2013 ONSC 960, Court File No. : 03-58/12, 20130403 in Whaley Estate Litigation Newsletter Vol.3 No. 1 April 2013 - link

 

4. Charles E. Gessert. The Problem with Autonomy: An overemphasis on patient autonomy results in patients feeling abandoned and physicians feeling frustrated.  Minnesota Medicine. April 2008 - link

5. Meyer DH. For The Patient's Own Good: The Restoration of Beneficence in Health Care by Edmund D. Pellegrino, MD and David C. Thomasma, PhD.(240 pp., $41.50, ISBN: 0-19-504319, Oxford University Press, New York, NY, 1988.) - link 

6. Gordon M. Assault as Treatment: Mythology of CPR in End-of-Life Dementia Care.
Annals of Long-Term Care: Clinical Care and Aging. 2011;19(5):31-32. - link
 
7. Handelman M. Consent to Life Support: What the Supreme Court Said in Cuthbertson and Rubenfeld v.Rasouli - link
 
8. Schafer A. Right-to-die ruling: Win for families, loss for common decency. The Globe and Mail, Oct. 18 2013. - link
 
9. Schostak Z. A Wake-Up Call for Our Community: Take Control of Your Health Now. Jewish Action. October 29, 2010 - link 
 
10 . Measuring capacity to complete the 'Let Me Decide: Advance Care Directive' - SIACAD: link and link (Let Me Decide Molloy W)
 
11. Sarah Burningham, Christen Rachul & Timothy Caulfield. INFORMED CONSENT AND PATIENT COMPREHENSION: THE LAW AND THE EVIDENCE McGill Journal of Law and Health ~ Revue de droit et santé de McGill. Volume 7, Issue 1 (2013) (pp. 123-128) - link
 
12. Gordon M. Artificial Nutrition and Hydration: Is it Really What you Want? Canadian Virtual Hospice. 2013. - link 

 

This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Guest articles and comments do not necessarily reflect the view of WEL

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