Are Halachic Powers of Attorney for Personal Care Binding in Ontario?

The purpose of this article is to examine the precedent Living Wills developed & published by the Commission on Medical Ethics of the Rabbinical Council of America1 and Agudath Israel of America2 in the context of Ontario law. This paper will address whether a hospital is bound by a written power of attorney for personal care which requires that the Substitute Decision Maker (“SDM”) consult with a rabbi and be bound by the rabbi’s decision concerning end of life issues.

Lawyers involved in estate planning normally recommend that clients have powers of attorney for personal care prepared so that the client’s wishes are clearly articulated and entrusted to someone who can communicate those wishes to the doctors if the client is unable to do so. Ontario’s Substitute Decisions Act,3 sets out the criteria as to how the power of attorney for personal care should be executed4 and those using the aforementioned precedents should be careful regarding the formalities of execution since the precedents were drafted for jurisdictions other than Ontario. A fuller discussion of these issues follows later. Aside from compliance with minimum age and execution requirements set out under Ontario’s legislation, there are substantive issues needed to be addressed to ascertain if these halachic5 powers of attorney for personal care will have the intended impact on treatment of the patient.

Imagine your orthodox Jewish client who wants a power of attorney for personal care drafted so that the End of Life health decisions will be in compliance with Halacha. After some research you find two precedents. One prepared by the Rabbinical Counsel of America6 and the other by Agudath Israel of America7. These precedents reflect the client’s wish that all available measures be taken to prolong life. They both provide that where there is a question regarding the withholding of treatment in end of life situations the treatment plan must be determined in accordance with Halacha as ascertained by a named rabbi. Several years later your client is diagnosed with Alzheimers. His physical condition deteriorated to the point that he is placed on a ventilator. In the doctor’s opinion, treatments contemplated to prolong the patient’s life do not address the patient’s underlying condition. While death is not imminent, treatment in this fashion is agonizingly painful and would erode the patient’s dignity. He recommends withholding the ventilator. The rabbi is consulted and directs the SDM to refuse to consent to the doctor’s proposal. The Doctor applies to the Consent and Capacity Board who orders the SDM to consent to the Doctor’s treatment plan. Could this actually happen in Ontario? Perhaps.

In Scardoni v. Hawryluck8 two religious Roman Catholics were the designated attorneys for their mother under a power of attorney for personal care. Contrary to the precedents provided by the RCA and Agudath Israel, the power of attorney for personal care executed by their mother was a commonly used precedent authorizing the daughters “to make decisions concerning my personal care in accordance with the Substitute Decisions Act and any conditions, restrictions, specific instructions or special powers contained herein” and, “specifically, on my behalf to give or refuse to consent to treatment to which the Health Care Consent Act, 1996 applies.” The two daughters were intent in complying with their mother’s wishes who had always told them “where there is life there is hope”. They insisted that all efforts be expended to prolong their mother’s life.

The Doctor was opposed to the use of a ventilator and inotropic drugs because while they would sustain the patient’s life, but would not improve the underlying disease. The doctor believed that there was no chance to prevent further deterioration from Alzheimer’s. Ultimately, the Doctor felt that the benefits in prolongation of this patient’s life was not in her best interests in that it did not outweigh the resulting pain, discomfort and loss of dignity resulting in a lower quality of life.

Pursuant to section 37 of the Health Care Consent Act, the doctor applied to the Consent and Capacity Board for direction on the basis that the substitute decision maker (“SDM”) did not comply with section 21 of the Health Care Consent Act in coming to the decision to not consent to treatment plan suggested by the doctor. The Board directed the daughters to follow the advice of the doctor. The daughters appealed. Justice Cullity’s allowed the appeal and set aside the decision of the Board. A review of the issues he canvassed may assist us in assessing how binding a halachic living will may be under a similar scenario.

Heath Care Consent Act

It will be a useful exercise to walk through the issues canvassed by Justice Cullity. His Honour pointed out that the Health Care Consent Act9 deals with “…circumstances in which consent to a patient’s treatment must be obtained and provided, the persons who may give that consent when a patient lacks capacity and the principles that such persons must observe when determining whether to give or refuse consent.” Based on his analysis of the legislation Justice Cullity came to some conclusions relevant to the issues before us:

1. Obligation by doctor to obtain consent to treatment. By virtue of section 10 of the Health Care Consent Act, a doctor who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

1. 1. he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
   2. he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act

Doctors must obtain consent to the proposed treatment when the patient does not have capacity.10

2. No decision on whether section 10 obligation applies to withdrawal of treatment – Potentially explosive issue. This arguments surrounding this legal issue may be the most interesting and potentially controversial of this case. Harry Underwood, the lawyer for the hospital argued, that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. In contrast, Joyce Chan, the Lawyer for the daughters, argued that all references to “treatment” in s. 10(1) include a plan of treatment where there is a withholding or withdrawing of particular treatment. Should Mr. Underwood be correct then section 10(1) does not require a SDM’s consent to withhold treatment and consequently, regardless of what is written in any power of attorney, a doctor can decide to withdraw or withhold treatment no matter what the patient or SDM wish. So what did the judge decide?

Since, in the Scardoni Case, the doctor asked for the daughters’ consent to withhold treatment, Justice Cullity decided “…to leave the choice between the competing alternatives to be dealt with if and when a case ever arises in which the correct interpretation of the section is directly in issue.” I am unaware of a case in Ontario that has addressed this issue.”11 But, if counsel raised it in Scardoni, it is likely to be raised again. It is a live issue and one which directly impacts on the enforceability of the precedent halachic powers of attorney over personal care and for that matter on all powers of attorney for personal care. If the doctor does not need to consult the SDM whether to withdraw treatment then it is irrelevant what the wishes of the grantor were. Personally, I believe that to suggest that patients (or their representatives the SDM) have no say about withdrawal or withholding of services ignores the thrust and purpose of the Act.

Section 1 of the Act describes its purposes and runs contrary to the idea that withdrawal or withholding of services does not require consent. Contrary to the stated purposes of this legislation, failure to consult a SDM about withdrawal of services does not enhance the autonomy of persons for whom treatment is proposed, ignores the wishes with respect to treatment, fails to to promote communication and understanding between health practitioners and their patients or clients, fails to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment. Finally, I suggest that the position of Ms. Chan, (counsel for the daughters in the Scardoni case) was correct on this issue. Her position was that “treatment” in s. 10(1) includes a plan of treatment. The obligation imposed by the subsection relates to the plan as a whole, including the withholding or withdrawing of particular treatment.12

3. The key to this discussion is Section 21 of the Health Care Consent Act.13This section dictates the basis upon which the substitute decision maker must give or refuse consent to treatment. In summary, the legislation first requires that the SDM shall give or refuse consent in accordance with the wish of the incapable person. Secondly, if the SDM does

1. 1. not know the wish applicable to the circumstances that the incapable person expressed while capable or
   2. if it is impossible to comply with the wish,

the SDM shall act in the incapable person’s best interest.

One of the contentious issues in the Scardoni case was the position taken by the hospital that the lack of specificity in the power of attorney regarding the wishes of the incapable person indicated that, despite the oral evidence to the contrary, the SDM had no idea what the wishes of the incapable person would be in the circumstances. The Board agreed. Justice Cullity did not.

If Justice Cullity found the Scardoni’s general power of attorney, together with the oral evidence of the daughters, sufficiently specific to conclude what the wishes of the incapable person were, then a fortiori, the specificity of the halachic powers of attorneys should be sufficiently clear so that no one should have doubts about the grantor’s wishes. For example, the Agudath Israel of America states:

2. Jewish Law to Govern Health Care Decisions: I am Jewish. It is my desire, and I hereby direct, that all health care decisions made for me be made pursuant to Jewish law and custom as determined in accordance with strict Orthodox interpretation and tradition. Without limiting in any way the generality of the foregoing, it is my wish that Jewish law and custom should dictate the course of my health care with respect to such matters as the performance of cardiopulmonary resuscitation if I suffer cardiac or respiratory arrest; the performance of life-sustaining surgical procedures and the initiation or maintenance of any particular course of life-sustaining medical treatment or other form of life-support maintenance, including the provision of nutrition and hydration; and the criteria by which death shall be determined, including the method by which such criteria shall be medically ascertained or confirmed.

3. Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with and follow the guidance of the following Orthodox Rabbi:………………..

One might argue that the halachic power of attorneys do not deal with all types of end of life issues ( i.e. dialysis or dosages of morphine to name two examples) and in those circumstances the wish of the incapable person is unknown and decisions must be made in the best interests of the patient. The response would be that the incapable person’s wishes, in those circumstances, are covered by the general statement “…I hereby direct that all health care decisions made for me be made pursuant to Jewish law and custom as determined in accordance with strict interpretation and tradition”.

One might be tempted to suggest a divergence of rabbinic opinion on the appropriate halachic response to different Life Ending issues could cast doubt on the wishes of the grantor. This might permit a doctor to apply to the Board under section 37 and seek to impose a treatment plan in the “best interests” of the patient which would be contrary to their wishes. For example, one rabbi may review a situation and permit the SDM not to authorize a feeding tube, while another rabbi may suggest the opposite. The doctor could then argue that the divergence of opinion regarding the Halacha precludes being able to ascertain the patient’s wishes. In these circumstances the SDM must take into account the “bests interests” of the patient which includes factoring in “well being” or quality of life issues. This type of argument was used in Scardoni when the Board referred to their own knowledge of Roman Catholic doctrine to cast doubt on the SDM’s view of their mother’s wishes.

Just as Cullity dismissed this argument in the Scardoni case, I suggest other courts would likely look at both these precedent power of attorneys and likely conclude that the appointment of a specific rabbi (or a formula in lieu of a specific rabbi) provides sufficient specificity of the grantor’s wishes in that the appointed rabbi was likely chosen because his interpretation of the halacha reflected the wishes of the grantor. Where a difficulty may arise is if the chosen formula might produce several rabbis with divergent views. Should one be known publicly to support one position and the other a different position then there will be legitimate confusion as to the wishes of the incapable person in the circumstances. At that point a doctor could suggest that the wishes of the incapable person cannot be determined and the governing factor under the legislation should be the bestinterests of the patient.

4. So what does “best interest” mean? Let’s go to section 21(2) of the Act. The Emphasis is added. “In deciding what the incapable person’s best interests are, the person who gives or refuse consent on his or her behalf shall take into consideration,
   1. the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
   2. any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and
   3. the following factors:
      1. Whether the treatment is likely to,
         1. improve the incapable person’s condition or well-being,
         2. prevent the incapable person’s condition or well-being from deteriorating, or
         3. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.
      2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
      3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
      4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.”

In the Scardoni case the Board said as follows: “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”

On the appeal of the Board’s decision, Justice Cullity agreed with the Board’s understanding of “well-being”. A Board’s determination of “best interests” may be contrary to everyone’s view of a proper halachic response, but if there is doubt as to the wishes of the incapable person the Board’s decision about “best interests” would be determinative.

Substitute Decisions Act

Formalities of Execution

Under section 46(1) Substitutes Decisions Act,14 A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care. As the two precedents were created in contemplation of jurisdicitons other than Ontario it is incumbent on local solicitors to ensure that they comply with the technical requirments of our provincial legislation.

In Ontario, in order to have the capacity to appoint someone as an attorney for personal care or to give instructions in a living a will, the grantor must

• be at least 16 years of age;
• appreciate that the attorney may have to make personal care decisions for the person;
• have the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
• appreciate that the person may need to have the proposed attorney make decisions for the person.

Who may not be the attorney? In Ontario any person who provides health care to the grantor for compensation; or provides residential, social, training or support services to the grantor for compensation cannot be the attorney. The exceptions to this rule are the grantor’s spouse, partner or relative.

In the context of a Will, non compliance with the formalities of execution could be fatal. However, with respect to a power of attorney/health care directive the legislation provides that a court may declare the document to be valid even if the above formalities of execution were not enforced. Nevertheless, it would imprudent to ignore these formalities and risk challenges to the enforceability of the power of attorney for personal care. The formalities of execution in Ontario include:

• the necessity of having two witnesses;
• witnesses may not be the attorney’s spouse or partner, the grantor’s spouse or partner, a child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child, a person whose property is under guardianship or who has a guardian of the person, a person who is less than eighteen years old.
• A person may not act as an attorney under a power of attorney for personal care, unless the person is the grantor’s spouse, partner or relative, if the person, provides health care to the grantor for compensation; or provides residential, social, training or support services to the grantor for compensation.15
• s. 46 (4) of the act provides that if the power of attorney names two or more persons as attorneys, the attorneys shall act jointly, unless the power of attorney provides otherwise. Both precedents being examined provide that in End of Life situations the rabbi’s decision will be determinative and essentially appoints the rabbi as the power of attorney under these circumstances.
• Capacity issues for the grantor are the same whatever the form of the Power of attorney for personal care and section 47(1) must be complied with.16

Is the SDM a fiduciary? If so, are the precedent powers of attorney for personal care void because a fiduciary may not delegate?

A fiduciary is not permitted to delegate the authority with which he/she has been entrusted.17 If the power of attorney over personal care is a fiduciary then does the direction to the attorney to “consult and follow”18 constitute a delegation of fiduciary duty? If so, does the requirement invalidate the halachic powers of attorney?

Once could argue that the SDM for personal care is not a fiduciary. The argument would go something like this. The Substitute Decisions Act states that an attorney for property is a fiduciary19 . There is no comparable statement in the act regarding an attorney for personal care. Both the inability of a POA for personal care to benefit himself/herself from the property of the incapable person20 and the absence of a comparable provision under the Act describing the POA for personal care in that manner means that the latter is not a fiduciary.

I would submit that the better view is the line of cases that suggest that the power of attorney over personal care is a fiduciary. Arguably, there is a comparable common law duty upon an attorney for personal care. For example, the courts have found that Churches and doctors were fiduciaries under certain circumstances for people under their care even though there was no personal benefit from breaches of the fiduciary duty.21 The position of Justice Sopinka in the Lack Mineral Case22 sets out a test as to whether a fiduciary relationship exists between a Substitute Decision Maker and an incapable person. Sopinka J. wrote

“… there are common features discernible in the contexts in which fiduciary duties have been found to exist and these common features do provide a rough and ready guide to whether or not the imposition of a fiduciary obligation on a new relationship would be appropriate and consistent. Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

1. The fiduciary has scope for the exercise of some discretion or power.
2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. “23

The SDM for personal care certainly has discretion, may exercise it to affect the beneficiary’s practical interests and there is no one more peculiarly vulnerable than an incapable person for whom life sustaining services may be withdrawn. So for the balance of this discussion let’s work with the assumption that the SDM is a fiduciary.

Does the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation? Perhaps it does. Does that mean that the Power of Attorney is invalid?

Rogers, Re (1928), 63 O.L.R. 180, [1929] 1 D.L.R. 116 (Ont. H.C.) is the only Canadian case I found where the courts reviewed the validity and enforced an express clause in the trust instrument which granted the trustee authority to delegate a particular power. The case also set out the conditions under which the trustee position could be delegated. In Waters; Law of Trusts in Canada the learned professor points out that the modern description of such as person is a “protector” who owes a fiduciary duty of loyalty. Professor Waters further points out some of the issues to be considered in regards to the naming of a Protector.

1. Successor Must Be Named. Professor Waters points out that should the named protector (in our scenario the rabbi) predecease the grantor of the attorney then there can be no successor unless “…the instrument gives the personal power to some other person in the circumstances that have happened…”. Both the precedents being reviewed comply with this requirement.
2. Roles of Fiduciary.If the protector has a fiduciary duty, the instrument must provide for the following:
   1. Succession. Both precedents deal with this issue.
   2. Capacity. Neither of the precedents deal with this issue.
   3. Retirement. Both precedents deal with this issue.
   4. Removal Neither of the precedents deals with this issue.
   5. Duties and powers Both precedents deal with this issue.
   6. Indicate what will happen if the Protector is unreasonable, obstructive, absent, or negligent. Neither of the precedents deal with this issue.

Both the RCA and Agudath Israel powers of attorney over personal care do not deal with removal of the rabbi or indicate what to do if he is unreasonable, obstructive, or negligent. For example, what happens if the rabbi so named leaves the faith or becomes incompetent to render halachic decisions for any other reason. The attorney who wants to honour the grantor’s wishes would not want to be bound by that person’s interpretation of Halacha. I do not know whether the courts would invalidate a power of attorney for its failure to deal with these issues. Clearly, the wishes of the Grantor would still be evident. Nevertheless, it behooves those using the precedent halachic powers of attorney to revise them to deal with those issues.

Conclusion

The two precedent halachic living wills that were reviewed herein were not drafted with Ontario in mind. Nevertheless, they address most of the substantive issues relevant to our jurisdiction. These powers of attorney both crystallize and clarify the wishes that the person who executes such a power of attorney wants decisions made in accordance with strict Orthodox Jewish law. They both provide specificity of what should be done in all circumstances by saying that Orthodox Jewish law governs and that the articulation of that law should be done in consultation with a named rabbi. As a practical matter, where such specificity exists it should be sufficient to comply with section 21 of the Health Care Consent Act. However, were I to draft a power of attorney for personal property, I would not adopt the precedents holus bolus, but would address the issues raised above.

That being said, if the definition of “treatment” in the Health Care Consent Act does not include withdrawal or refusal to treat a patient then nothing inserted into a power of attorney for personal care can prevent a doctor from refusing to treat a patient Remember, in Scardoni, Justice Cullity purposefully declined to address that issue. We will have to wait until the courts adjudicate on whether withdrawal of services falls into the meaning of “treatment” as defined by the Health Care Consent Act. Based on the obiter in Scardoni and the stated purposes of the Act it is more probable that a court would include the withdrawal or withholding of services as part of a treatment plan and require consent from a patient or his/her SDM to make that decision.24

We live in a very litigious world where people of good faith often disagree. Too often the disputes cannot be resolved and end up in court. This is especially so when family members are at odds with doctors and have to deal with sensitive issues relating to terminally ill patients in inexorable pain. The chances for conflict and confusion are reduced when competent solicitors familiarize themselves with the issues so that care and precision is taken in the drafting of powers of attorney. Drafting this type of power of attorney can be very complicated. Despite the temptation to jump to conclusions, it would be a mistake to substitute this review of the topic for substantive legal advice. For those considering this option, there is no replacement for a competent solicitor’s own research, analysis and judgment.

Appendix A – RCA Precedent

Appendix B – Agudath Israel Precedent

Appendix C

Joyce Chan, the solicitor for the Appellants in the Scardoni case, was kind enough to review this paper and provide some insights which she felt may be useful to those canvassing the issues raised in the paper. These are her comments.

Scardoni v. Hawryluck: A significant step down the slippery slope towards professionally-assisted euthanasia or mercy killing

In Scardoni v. Hawryluck25, Mrs. Joyce Holland was not in a vegetative state or brain-dead. Mrs. Joyce Holland was medically stable with recurrent pneumonia and only cognitively impaired on account of her Alzheimer’s disease. In short, Mrs. Joyce Holland was very much alive when the physician proposed to withhold medically beneficial treatments for her pneumonia, namely the use of a ventilator and isotropic drugs which would require an admission to the intensive care unit. During the relevant times, Mrs. Joyce Holland was able to breathe spontaneously but not sufficiently, and therefore she was not totally dependent on the ventilator.

Medical Futility v. Sanctity of Life

Assertions of medical futility invariably underpin proposals to withhold or withdraw life-sustaining and/or medically beneficial treatments. Medical futility generally means that the physicians have no obligation to offer treatments that do not benefit the patients and assumes that futile interventions often increase the patient’s pain and discomfort in the final days and weeks of life. Generally, the subjective notions of “loss of dignity” and “poor quality of life” are relied upon to buttress the arguments of medical futility, as opposed to values and beliefs in “sanctity of life”26.

Heath Care Consent Act

Whether section 10 (Health Care Consent Act) obligation applies to withdrawal of treatment

The principle of “Sanctity of life” is codified in the Canada Criminal Code under ss. 14, 215, 216, 217, 219, 463, 464 and 465 which impose the legal duties to provide and the legal liabilities for non-provision of necessaries of life.

The respect for “sanctity of life” is also entrenched under Section 7 of the Canadian Charter of Rights and Freedoms which provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It is submitted that the Human Rights Code of Ontario will also be relevant in opposing the withholding or withdrawing of treatment on account of a person’s age, mental and/or physical disabilities27.

However, in cases of withholding and/or withdrawing of treatment, time is of the essence in securing interim prohibition orders from the court to protect the person’s right to life, as death is irreversible.

Section 21 of the Health Care Consent Act

As outlined in Mr. Charles B. Wagner’s paper,

the legislation first requires that the SDM shall give or refuse consent in accordance with the wish of the incapable person. Secondly, if the SDM does

c) not know the wish applicable to the circumstances that the incapable person expressed while capable or

d) if it is impossible to comply with the wish,

the SDM shall act in the incapable person’s best interest.

Given that there is not yet any court decisions determining the sufficiency of halachic powers of attorneys in satisfying the test of “prior capable wish applicable to the circumstances” as contemplated under subsection 21(1) 1, the following considerations may be helpful to reduce the risk of doubts about the grantor’s wishes:

1. The quoted passage from the Agudath Israel of America would be more appropriate for a consideration under subsection 21 (2): the second stage inquiry respecting best interests; and particularly in considering the person’s values and beliefs under subsection 21 (2) (a).
2. The delegation of decision power to a third party to determine treatment, other than the appointed attorney under the power of attorney, may not constitute the grantor’s prior capable wish applicable to the circumstances.
3. In order to better satisfy the test for prior capable wish applicable to the circumstances, as stated in a Consent and Capacity Board decision:

“… the wish needs either enough specificity to relate to the person’s situation at the time of the Hearing or enough breadth to be applicable to the proposed treatment or admission regardless of the circumstances”28.

4. Accordingly, it will be advisable to include statements from the grantor on his or her understanding of Jewish law and custom as may apply in some of the circumstances outlined in the sample paragraph “Jewish Law to Govern Health Care Decisions”; which in turn, would provide evidence to the grantor’s values and beliefs. For example, what are the grantor’s values and beliefs on the principle of sanctity of life, albeit such values are based on religious beliefs?
5. Furthermore, the grantor should show appreciation of the consequence of his or her wishes respecting certain treatment. The grantor’s statement would incorporate an acknowledgement and acceptance of pain and suffering, his concept of quality of life and human dignity, in accordance with the grantor’s beliefs based on Jewish law and custom, as counter measures to the anticipated arguments of medical futility and other subjective assumptions of quality of life and human dignity. The added specificity also would defuse arguments that the wish is not applicable to circumstances.

1For the precedent provided by the Rabbinical Counsel of America please refer to Appendix “A” of this paper and on line at http://www.hods.org/pdf/Living%20Will%20RCA.pdf (back)

2For the precedent provided by Agudath Israel of America please refer to Appendix “B” or this paper and on line at http://www.hods.org/pdf/Living%20Will%20Agudath%20Israel.pdf (back)

3Substitute Decisions Act, 1992, S.O. 1992, c. 30 (back)

4For a helpful summary I refer the reader to Histrop, Estate Planning Precedents, VI, app.5 (back)

5Halacha is a Hebrew term. As defined by the Encyclopedia of the Columbia University Press, in Judaism, all laws and ordinances evolved since biblical times to regulate worship and the daily in Judaism, the body of law regulating all aspects of life, including religious ritual, familial and personal status, civil relations, criminal law, and relations with non-Jews. Halakah is the term used to designate both a particular ordinance and the law in the abstract. The adjective halachic means “of a legal nature.” The plural, halakoth, designates a collection of laws. It usually refers to the Oral Law as codified in the Mishna and, in particular, to those statements of law that appear in categorical form without immediate regard for scriptural derivation. The most authoritative codifications of these laws are the Mishneh Torah of Maimonides and the Shulhan Arukh [the set table] by Joseph Karo. Halakah was the important unifying force in world Jewry until modern times, when its authority was challenged by religious reform and secular conceptions of a Jewish nation. Contemporary problems in halakah revolve around its application to technological change, especially in relation to medical issues and Sabbath observance. Halakah is contrasted with aggada (plural aggadoth), the literary, aesthetic elements in the Oral Law and in the Talmud, and Midrash generally, which elaborates scriptural meaning through legends, tales, parables, and allegories. Both the halakic and aggadic elements have been extracted and made the subject of commentary.

The philosophic and religious and Halachic issues surrounding End of Life matters are beyond the scope of this paper and not within the expertise of the writer. (back)

6The Rabbinical Counsel of America’s precedent lists situations in which (by inference) they believe it is permissible for a Jew to consent or refuse treatment. Thereafter, the precedent provides as follows: “(2) Concurrence of an Orthodox rabbi. Prior to my agent making any decision about my health care in any case not covered by these directions one of the following rabbis shall be consulted. The rabbi’s decision shall govern my agent and doctors.” (back)

7Aguda’s interpretation of Halacha, as it relates to End of Life Issues may differ from that of the Rabbinical Counsel of America. Their precedent lists no instances where it is presumed that the patient may consent or refuse treatment. Their precedent states “2. Jewish Law to Govern Health Care Decisions: I am Jewish. It is my desire, and I hereby direct, that all health care decisions made for me be made pursuant to Jewish law and custom as determined in accordance with strict Orthodox interpretation and tradition. Without limiting in any way the generality of the foregoing, it is my wish that Jewish law and custom should dictate the course of my health care with respect to such matters as the performance of cardiopulmonary resuscitation if I suffer cardiac or respiratory arrest; the performance of life-sustaining surgical procedures and the initiation or maintenance of any particular course of life-sustaining medical treatment or other form of life-support maintenance, including the provision of nutrition and hydration; and the criteria by which death shall be determined, including the method by which such criteria shall be medically ascertained or confirmed. 3. Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with and follow the guidance of the following Orthodox rabbi….” (back)

82004 CarswellOnt 424: 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700 (back)

9Health Care Consent Act, 1996, S.O. 1996, c. 2, (back)

10s. 10(1)(b) Health Care Consent Act (back)

11For a complete version of Mr. Underwood’s submissions about section please refer to Paragraph 41 of Justice Cullity’s decision in Scardoni v. Hawryluck. (back)

12For a complete canvassing of Ms. Chan’s submissions about section 10 please refer to paragraph 42 of Justice Cullity’s decision in Scardoni v. Hawryluck. As well, Ms. Chan was kind enough to review this article and provide some comments. These comments are attached as Appendix “C”. (back)

13Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (back)

14Substitute Decisions Act, 1992 S.O. 1992, CHAPTER 30 (back)

15section 46(3) Substitute Decisions Act, 1992 S.O. 1992, CHAPTER 30 (back)

1647. (1) A person is capable of giving a power of attorney for personal care if the person,
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person. 1992, c. 30, s. 47 (1). (back)

17Please see paragraph 90 of Capannelli v. Muroff 2003 CarswellOnt 925, 8 R.P.R. (4th) 83, 32 B.L.R. (3d) 17890. The court quoted Gillese J.A., in her text The Law Trusts, at p. 10, and confirmed the common law position that a fiduciary may not delegate his responsibilities. Also see Wile v. Rhodenizer; 1943 CarswellNS 7; 17 M.P.R. 42, [1943] 3 D.L.R. 497; R. v. Yaremkevich; 2002 CarswellAlta 1326; 2002 ABPC 174, 40 C.B.R. (4th) 195, 328 A.R. 180; Alberta Provincial Court; November 7, 2002; Docket: Edmonton 006704464P101; (back)

18Agudath Israel of America’s POA states “Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with and follow the guidance of the following Orthodox Rabbi….”. The RCA’s POA stated, “Concurrence of an Orthodox rabbi. Prior to my agent making a decision about my health care, in any case not covered by these directions one of the following rabbis shall be consulted.The Rabbi’s decision shall govern my agent and my doctors.” (back)

19Section 32 (1) (back)

20see the argument of McEachern in C.J.B.C. in A.(C.) v. C.(J.W.) at p. 116, where he argues that in almost every case canvassed where the Supreme Court of Canada has found the defendant guilty of the breach of a fiduciary duty, “the defendants personally failed to discharge a legal duty for their own benefit”. He suggests that the possibility of a POA succumbing to self interest is part of the definition of a fiduciary. (back)

21Please see Blueberry River Indian Band v. Canada, [1995] 4 S.C.R. 344 in which the Supreme Court of Canada found that a fiduciary duty exists eventhough there was no issue of self dealing. Also see Clea Parfitt and Melinda Munro in “Whose Interests Are We Talking About? A.C. v. Critchley and Developments in the Law of Fiduciary Duty” (1999), 33 U.B.C. L.Rev. 199. As well, in M.(F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.) the Church had a fiduciary duty as educators and caregivers for minors and was found to have breached its fiduciary duty by failing to report and investigate complaints regarding sexual molestation of minors. (back)

22Lac Minerals Ltd. v. International Corona Resources Ltd. 44 B.L.R. 1, 26 C.P.R. (3d) 97, 69 O.R. (2d) 287, 61 D.L.R. (4th) 14, 6 R.P.R. (2d) 1, 35 E.T.R. 1, 101 N.R. 239, 36 O.A.C. 57, [1989] 2 S.C.R. 574 (back)

23This test was confirmed in Hodgkinson v. Simms, 1994 CanLII 70 (S.C.C.) [1994] 3 S.C.R. 377 • (1994), 117 D.L.R. (4th) 161 • [1994] 9 W.W.R. 609 • (1994), 16 B.L.R. (2d) 1 • (1994), 16 B.L.R. (2e) 1 • (1994), 49 D.T.C. 5135 • (1994), 57 C.P.R. (3d) 1 • (1994), 97 B.C.L.R. (2d) 1 where the court stated “A party becomes a fiduciary where it, acting pursuant to statute, agreement or unilateral undertaking, has an obligation to act for the benefit of another and that obligation carries with it a discretionary power. Several indicia are of assistance in recognizing the existence of fiduciary relationships: (1) scope for the exercise of some discretion or power; (2) that power or discretion can be exercised unilaterally so as to effect the beneficiary’s legal or practical interests; and, (3) a peculiar vulnerability to the exercise of that discretion or power”.(back)

24Please see paragraph 42 of the Scardoni decision where Cullity J., reviews Ms. Chan’s submissions regarding this issue.

“42 An alternative interpretation that Ms Chan supported is that all references to “treatment” in s. 10(1) include a plan of treatment and that the obligation imposed by the subsection relates to the plan as a whole, including the withholding or withdrawing of particular treatment. This interpretation is, I believe, more consistent with the definitions in s. 2 that are reproduced above. Section 13 is, I think, ambiguous in that the permissive “may” in the opening words could relate simply to the authority of one of a number of practitioners, or it could reflect a legislative intention that the decision whether or not to obtain consent to a plan of treatment is entirely within the discretion of the health practitioner. A difficulty with the second alternative construction of s. 13 is that the provision is not confined to consent to the withholding or withdrawal of treatment. If it reflects the absence of an obligation to obtain consent to a plan of treatment, this would appear to apply equally to particular treatments to be administered in accordance with the plan. The distinction between treatment that is rejected by health practitioners as appropriate on health grounds and treatment that is part of a plan of treatment is withheld may be difficult – and even very difficult – to apply in some cases,…..” (back)

252004 CarswellOnt 424: 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700, para. 33 (back)

26Scardoni, supra (back)

27Human Rights Code, R.S.O. 1990, Chapter H.19, section 1 (back)

28M. F., Re, 2003 CanLII 14908 (On. C.C.B.) and see Conway v. Jacques, (2002), 59 O.R. 737, 214 D.L.R. (4th) 67 for a discussion on prior capable wishes applicable to the circumstances (back)

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