ESTATE PLANNING AND MEDICAL ASSISTANCE IN DYING (MAID) IN ONTARIO

*Trigger Warning*

Power of Attorney for Personal Care

A Power of Attorney for Personal Care is a legal document that appoints an ‘Attorney’ and gives that Attorney the power to make decisions on your behalf related to your personal care, including your health, medical treatment, housing, meals, hygiene, etc.

Your Power of Attorney for Personal Care is only valid should you be determined incapable to manage your own personal care. In that case, the person appointed as Attorney is permitted to make personal care decisions on your behalf.

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 your wishes when the Power of Attorney for Personal Care is in effect. Under the current Canadian legislation, advance directives that express the wish that Medical Assistance in Dying (“MAID”) is used are currently unenforceable.

Eligibility Requirements For MAID

In order to access MAID in Ontario, a person must:

  • be eligible for publicly funded health care services in Canada;
  • be 18 years of age or older;
  • be capable of making health care decisions;
  • be able to provide informed consent, which means that you have given permission after you have received all the information you need to make your decision;
  • voluntarily request medical assistance in dying;
  • have a grievous and irremediable medical condition, which means you:
    • have a serious and incurable illness, disease or disability;
    • are in an advanced state of irreversible decline in capability;
    • are enduring physical or psychological suffering, caused by the medical condition or the state of decline, that is intolerable and cannot be relieved.

A person’s eligibility for MAID must be determined and confirmed by two independent doctors or nurse practitioners upon request.

How this applies to your estate plan

Under current Canadian legislation, you cannot include advance directives to express the wish for MAID. Further, an Attorney does not have the legal ability to consent to MAID on behalf of someone else.

That said, along with other end-of-life preferences, 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 changes to the law in the future.

If you have any questions related to a Power of Attorney for Personal Care, or related to your estate plan in general, please reach out to our Estate Planning team at [email protected].

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