April 16th is National Advance Care Planning Day

One of the most vexing problems a person can face is making an “end of life” decision for a loved one with no information about that person’s values, beliefs or wishes.

In Ontario, the law requires a substitute decision-maker (“SDM”) to make those decisions in accordance with the incapable patient’s previously expressed capable wishes applicable to the circumstances (unless those wishes are impossible to comply with). If no such wishes are known, then the decision must be made in accordance with the person’s values, beliefs and best interests.

However, whether or not the person has a Power of Attorney for Personal Care, SDMs frequently have no idea what the patient’s wishes, values or beliefs are — and the patient can no longer express them. Or, the POA expresses wishes, but they’ve never been discussed between the patient and the Attorney. The result, not infrequently, is the torment of having to make an irreversible decision with inadequate information, frequently with the consequence that the SDMs demand that treatment continue far beyond the point in time at which the patient would have preferred to be allowed to die with his or her remaining dignity.

There are at least four fulcrums at which these sad stories can be avoided: in a lawyer’s office; in discussions between patient and doctor; at the instance of the patient, and; at the instance of the patients loved ones.

Lawyers

Lawyers frequently fail to encourage their clients to consider a POA for Personal Care when discussing other matters. They should at least be planting the seeds for thought, for example, when acting for a client on a real estate transaction.

Many lawyers, when instructed to prepare POAs and Wills for clients, spend considerable time talking about estate planning, bequests and POAs for property. The POA for personal care is almost an afterthought. In my view, the “best practice” is to canvass end of life wishes, values and beliefs with the client, then insist the client discuss same with the proposed Attorney, first to ensure the Attorney knows what the client’s values, beliefs and wishes are and second to “empower” the Attorney to act in accordance with them.

Doctors

In his report recently released to the Ontario government, Don Drummond said the province should encourage physicians to have “end of life” discussions with patients as early as when the patient is in his/her early forties. Why not, we’re all going to die some time…

Doctors tell me they simply don’t have time to do that. However, those discussions frequently do not happen even when a person is admitted to hospital with a life-threatening condition or for surgery. I think it is vital to the concepts of “patient-centered care” and “respecting patient’s dignity” that hospitalists canvass these issues with their patients and thoroughly chart the discussions. One case in which I was involved, involved a man in his late eighties with end stage dementia. At a Hearing before Ontario’s Consent and Capacity Board to determine appropriate treatment for him, the attending physician conceded that no health practitioner of whom he was aware had ever, over the progression of the illness, canvassed the man’s wishes, values or beliefs. Nor did the hospital have, in this patient’s chart, a copy of his Power of Attorney.

The Person

It’s your life, how do you want it to end? You do have some say in the matter, even if you are unable to express your views when the time comes. But, the people who love you will be making your decision in that case and you therefore have a responsibility to yourself to ensure they have some idea of what you want. And, expressing your wishes does not have to be done in medical or scientific terms.

When my mother was in her early eighties, she raised the issue with me as I was taking her home after a funeral. So, I asked her what she wanted. Her reply: “When there’s nobody home, you turn out the lights.” I understood.

Loved Ones

You may end up as SDM for a loved one by operation of law: Ontario’s Health Care Consent Act contains a hierarchy of decision-makers. You will not be ready for this responsibility if you don’t know what he or she considers important at end of life and the results can be devastating for you, your family as a whole and the loved one whose decision must be made. No, it isn’t an easy conversation to have, but it is an important one for all involved. So, raise the topic, even if only to alert a spouse or ageing parent that April 16th is National Advance Care Planning day. There’s even a website — Google it!

Two Sample Provisions

Below are two sample provisions setting out end of life wishes. I actually use one if it reflects the client’s perspective. The other one, well, at least it gets the discussion started….

Sample 1:
Death is as much a reality as birth, growth, maturity and old age. It is the one certainty of life. I recognize this.

Therefore, while I am incapable, should a situation arise where my attending physician determines that I will not recover from a disability and that my death is imminent, I DIRECT MY ATTORNEY to permit me the dignity of a peaceful passing. I do not wish to be kept alive by artificial or heroic measures that would only serve to prolong my dying process, but I rather wish to die with dignity and in comfort. In that situation, I wish for treatments that will allow me to die peacefully even though they may abbreviate the dying process, resulting in a hastening of my death.

Sample 2:
Under no circumstances do I wish my fate to be put in the hands of pinhead partisan politicians who couldn’t pass ninth-grade biology if their lives depended on it or lawyers/doctors/hospitals interested in simply racking up big bills.

If more than 3 days pass, and I fail to ask for at least two of the following:
____ Vodka and Tonic ____a Margarita ____a Beer ____a Bloody Mary ____Single Malt Whiskey ____a glass of wine ____Sex ____T-bone Steak ____Lobster or crab legs ____Barbequed Ribs and mashed potatoes with gravy ____pizza ____Sex ____the remote control ____a bowl of ice cream ____the sports page ____Cheesecake ____Sex or ____Chocolate, it should be obvious that I won’t ever get any better and that it’s time for me to go.

When such a determination is reached, I hereby instruct my appointed person and attending physicians to pull the plug, reel in the tubes, turn off the lights, and call it a day. At this point, it is time to call the New Orleans Blues Funeral Band to come do their thing at my funeral, and ask all of my friends to raise their glasses to toast the good times we have had.