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Still Don’t Have a Power of Attorney for Healthcare?

Canadians are living longer than ever. Yet, over 500 Canadians are diagnosed with cancer every day1, and according to the Alzheimer’s Society of Canada 747,000 Canadians are currently living with dementia2.

No one likes talking about getting sick or dying. But in today’s world, choosing a Power of Attorney (POA) is a difficult conversation we need to have with our loved ones. A Power of Attorney grants a person of your choosing the power to make important financial and medical decisions on your behalf, should you be unable to.

However, studies show that 56% of Canadians have not written their will3 or powers of attorney. As a result, there are a growing number of families that have had to deal with difficult, stressful situations when a family member becomes ill or incapacitated.

Phillip’s Story

Phillip, a 50-year-old investment advisor, lives in Toronto with his wife Annie and their two sons. Phillip’s in-laws, John and Sue- both in their early 70’s- were retired and living their dream of traveling the world. They had left for a two-week trip to Europe when Annie received a call from her father. It seems Sue had suffered a stroke in Europe. They took Sue by ambulance to a hospital and were treating her. John asked Phillip to get Sue’s medical records, and for Annie to fly there to help. That turned out to be the beginning of a nightmare. The doctor would not release the medical records to Phillip, since he was not named power of attorney, and John did not have regular access to a phone. It took weeks to arrange everything they needed, including a flight home once Sue was stable. Much of that could have been avoided had John and Sue had designated a Power of Attorney for healthcare.

What You Need to Consider

There are many situations that can require someone to have a power of attorney for healthcare:

  • If you already have health issues
  • If you unexpectedly and suddenly become incapacitated
  • If you travel abroad regularly
  • If you’d prefer that your mother, or your brother, rather than your estranged father, to make medical decisions on your behalf
  • Or if you would prefer your partner, rather than your parents, make medical decisions should you be unable to

When setting up your POA for healthcare you need to carefully consider the person you choose to be someone that you can trust to carry out your wishes in the way that you want. You may appoint more than one person, but it is important to decide whether they should act together or separately (joint or joint and severally). If you do appoint more than one attorney, and they must act together, it is wise to appoint a third person (or include a mechanism) to resolve disputes if the attorneys can’t agree. You may also appoint alternate and successor attorneys, should your first choice be unable or unwilling to perform his duties.

In Phillip’s case, had he been named power of attorney jointly and severally with his father-in-law, the family could have avoided a lot of stress and gotten Sue home faster.

Why Add a Living Will to Your POA?

Even those who have taken the time to appoint a power of attorney can still encounter problems if their directives are not specific enough. In recent years a Living Will has become an important addition to one’s POA for healthcare. The POA names who you wish to advocate on your behalf, and the Living Will specifies in detail what your end of care wishes are. One may give instructions regarding:

  • Blood transfusions
  • Use of a respirator
  • Administration of life sustaining drugs, etc.

It is important to be very precise regarding your wishes so that your doctor and your family know exactly how to proceed if you are unable to speak for yourself. In Canada you have the right by law to make your own decisions regarding your medical treatment. When incapable, your POA is given that right.

Nevertheless, some doctors can and have argued that even with a POA and a Living Will, the true wishes of an incapacitated patient are unknown, and that further treatment can cause the patient undue pain. (Such was the case in 2008 of Wawrzyniak (DeGuerre) v. SunnyBrook, where a doctor overturned specific instructions by the patient’s daughter and POA, imposing a DNR order on the patient, against the family’s wishes4. The patient died shortly after. The daughter is suing the hospital for damages.)

What to consider after you prepared a power of attorney

  • Review the terms of your power of attorney regularly to make sure it still reflects how you want your healthcare managed
  • If you do make any changes to your power of attorney, notify your family of these changes
  • If you move or will need to use the power of attorney in another province, territory, or country, get legal advice to be sure the document will be recognized

Without a Power of Attorney for Healthcare

By not setting up a power of attorney for health care and a Living Will, your end-of-life care preferences may not be carried out. Without specific instructions your doctor will advise your family in a way he feels is best for you. Your loved ones may be forced to make difficult decisions at a time when they are already emotionally drained; one family member may disagree with the decisions made by others in the family, causing a strain on family relationships during a time when they need one another for support.

Conversations about illness and death are never easy but they are essential. Preparing a POA for healthcare with a Living Will is not only the responsible thing to do; it is an act of kindness towards your loved ones. It allows them to respect and fulfill your final request, not someone else’s.

 

Footnotes
  1.   Canadian Cancer Society http://www.cancer.ca/en/cancer-information/cancer-101/cancer-statistics-at-a-glance/?region=on
     
  2.   http://www.insidetoronto.com/community-story/5922959-part-one-mobilizing-policymakers-and-stakeholders-critical-to-addressing-impending-dementia-wave/
     
  3.   https://www.lawpro.ca/news/pdf/Wills-POAsurvey.pdf
     
  4.   The National Post September 3, 2014 http://news.nationalpost.com/news/canada/toronto-hospital-illegally-imposed-do-not-resuscitate-against-wishes-of-dying-veterans-family-medical-board
     

Aviva B. Abraham

Aviva Abraham, a guest author, is a group benefits and insurance advisor at Creative Planning Financial Group. Aviva has been providing healthcare solutions for self-employed and business owners since 2010. You can learn more by following Aviva on Twitter and Linkedin.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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