Living Will and your Estate Plan

April 11, 2016

Your Power of Attorney or Living Will may be even more important now in light of the Supreme Court’s decision to overturn the law criminalizing physician-assisted suicide in the decision of Carter v Canada (Attorney General). The suspension on the declaration that the relevant Criminal Code provisions were “of no force and effect” was set to expire in February, 2016. However, the Supreme Court of Canada granted the government an extension of the suspension. As a result, the government has four more months to make the necessary changes.

Some people may wonder, how will this affect my estate plan?

A written Power of Attorney, or a “living will”, is a document that gives someone else the right to act on your behalf. There are two types for your estate plan, the Continuing Power of Attorney for Property, covering financial affairs if you become mentally incapable, and a Power of Attorney for Personal Care, covering decisions such as housing and health care.

A Power of Attorney for Personal Care may contain conditions and restrictions. This section will allow you to prohibit your attorney from making any particular decision(s). Often, attorney authority is unrestricted. This broad power can be risky as the legal climate changes, particularly with respect to physician-assisted suicide.

Along with the recent extension, the Supreme Court of Canada granted an “exemption” for individuals who wish to exercise this right during the four-month waiting period. In order to access this option, the applicant must be a competent adult who clearly consents to the termination of life. The applicant must also have a grievous and irremediable medical condition that causes enduring, intolerable suffering that cannot be alleviated by any treatment acceptable to the applicant.

The specific changes required for your estate plan will be clear once the government has enacted the new legislation. This is especially so, considering the new legislation may also require reconsideration of the Substitute Decisions Act, 1992, and the Health Care Consent Act, 1996. Until then, it is clear that applicants must be competent and must clearly consent to the exemption. A Power of Attorney for Personal Care will only come into effect during a time that you are mentally incapable of making your own personal care decisions.

We work closely with our clients and their advisors to ensure they have an estate plan to fit their specific needs, beliefs and requirements.  If you would like to discuss your estate plan feel free to contact JP McAvoy at or by calling to speak with him or any of our other professionals at (613) 440-4888 and we will be pleased to discuss the options available to you.