Q: I read your previous columns on wills and powers of attorney. What is a living will? Do I need one and how do I write it?
A: This issue is yet another one that frequently arises when discussing estate planning. A will is absolutely necessary, a power of attorney is a good idea but a living will involves complex decisions of a highly personal nature and can be different for everyone.
In Western Canada, what are referred to as living wills are often called something else under provincial law. They may be advance health care directives, health proxies or something else. All of these terms cover basically the same thing and accomplish the same goal.
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Like a will or power of attorney, you can only sign this document if you are of sound mind and can understand what you are doing. It deals with events that could occur in the future, at a time when you cannot speak for yourself. The living will speaks for you.
A living will names someone who can make health-care decisions for you when you cannot do so. The common discussion of living wills is that they allow you to name someone to “pull the plug” on machines keeping you alive and that person can decide when to do so.
The actual legal document is a bit more complex than that. In it, you set out your beliefs concerning medical treatment. You determine the extent of life saving or resuscitating measures that you want performed on you. If machines are performing all your vital functions and you cannot do them independently, your living will decides whether that is something you want.
Your living will also designates one or more persons to make these decisions for you when you cannot. The decisions are to be made in accordance with your wishes as expressed in the living will. The person you name to make such decisions is called your proxy. He or she or they will deal with the medical establishment to ensure you get the care you have made known you want.
What goes into a living will, in terms of wishes? Obviously these are as varied as the people making them. Some people want more treatment; others want less. Personal, family, medical, spiritual and religious beliefs all contribute to this decision-making process. What is right for you is not for the next person.
Many people want palliative care and drugs or other treatment to stay pain-free or comfortable, but do not want machines carrying out all their bodily functions. Some want only holistic treatment, while others want the best medication money can buy. There are people who deal with the issues of organ donation or even donating their bodies to medical science, and state their wishes in their living will.
For these reasons, the preparation of a living will is an intensely personal matter. Discuss it with your family and loved ones, making sure they know your wishes and know what you want to happen in an unfortunate situation. You may even consider leaving a copy of your living will with your doctor.
As with many things in law and in life, communication is the key.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
