Carter v Canada (AG): Is your Power of Attorney sufficient?

Does your Power of Attorney for Personal Care account for the changing legal landscape around doctor-assisted suicide? In light of Friday’s Supreme Court decision in Carter v Canada (Attorney General), additional attention now needs to be paid to the choosing and drafting of Powers of Attorney.

New Considerations

A written Power of Attorney for Personal Care gives someone else the authority to make personal care and health care decisions on your behalf. The document sometimes contains an advance directive, specific instructions with respect to certain health care decisions. Many times, however, it is an unrestricted granting of authority. Many people decide they simply trust their Power of Attorney to make the right choice when a health care situation arises.

This broad granting of authority could be dangerous and have unexpected consequences if doctor-assisted dying becomes legal. It could be particularly risky, if a Power of Attorney is able to consent to doctor-assisted dying on your behalf.

A Changing Legal Landscape

On Friday, the Supreme Court decision struck down the blanket prohibition on physician-assisted suicide and gave the federal government a period of 12 months to redraft the legislation. In the meantime, the prohibition remains in place.  New federal legislation may also require provincial governments to revisit their substitute decision legislation, in Ontario, the Substitute Decisions Act, 1992 and the Health Care Consent Act, 1996.

Action Item

If you have an unrestricted written Power of Attorney for Personal Care or you have never signed one, you may choose to discuss this with an Estates lawyer. Make sure your end-of-life wishes are properly accounted for and you are well informed on the powers you are giving to another individual in this rocky legal environment.

Currently, the best you can do to protect yourself is:

1. Clearly communicate your wishes to your Power of Attorney;

2. Choose someone you trust to follow those wishes, in the event you are incapable; and

3. Have a lawyer carefully draft your wishes into a Power of Attorney for Personal Care.

It will be interesting to see what changes the 12 month deadline brings.  We will keep you abreast of the changes.

Lindsey Park

The Estate Law Group at McBride Bond Christian LLP

This is not legal advice. Please consult a lawyer before acting on any of the above comments.