Have you completed the legal aspects of advance serious illness planning?

The COVID-19 pandemic has caused tremendous social and economic upheaval. For many of us, it has been a wake-up call alerting us of the need to think and plan ahead for scenarios where either we or our loved ones get real sick. At Plan Well Guide, we want to help you prepare and plan for serious illness decision-making. That is our major focus. However, we realize that to be fully effective, your advance medical care plans should include filling out the necessary legal documents to designate people who are going to make decisions for you in the event you become incapacitated. 

We recently surveyed 500 people from across Canada and only 33% indicated that they had designated or picked their substitute decision-maker (SDM, the person who will make medical decisions for them if they become unable to do so for themselves). An important part of this process is ensuring you talk to your SDM. You need to inform the person of their role in decision-making and educate them on your values and preferences. 90% of these had in fact informed their SDM of their role but only 70% of those had actually seen a lawyer and filled out the actual paper work to legally establish this designation. This means that only 25% of our entire sample had their legal documents to support the naming of their SDM.

Beyond having assistance to make medical decisions should you become incapacitated, you may need assistance from others if you have a devastating illness and survive in a state where you require help from others in making decisions regarding your finances or personal care (for more on this, read our recent blog here on how best to prepare for this condition). While these may be called by other names, depending on the state or province that you live in, they are generally regarded as ‘attorneys’ and legal documents are required to both name these individuals and grant them their ‘powers’ or instructions. In this same survey, only 1 in 3 respondents acknowledged that they had done a power of attorney. Since the legal paperwork to determine substitute decision-makers and powers of attorney are usual done at the time of will and estate planning, we also asked whether respondents had a will. 45% of respondents stated that they had a will and 60% acknowledged that they had reviewed it within the past 5 years. The results of our survey give us a snapshot at how ‘legally prepared’ Canadians are for serious illness. The simple fact is that dying or becoming incapacitated (which is a possible outcome of COVID-19) and not having these legal documents in place can cause major headaches for loved ones which is something nobody would want.

How can Plan Well Guide help you better prepare legally for serious illness?

As you work with your lawyer to finalize your legal documents, we have one final piece of advice. Remarkably, despite the fact that ‘instructional directives’ or ‘living wills’ have no legal standing in Canada (except in the province of Quebec), many lawyers will ask you about the medical care you want at the end of life and put these instructions into the legal documents naming the substitute decision-maker. We strongly discourage this practice for the following reasons:

  • Instructions are for end of life care, not serious illness. At Plan Well Guide, we go to great lengths to explain the difference between these two terms and stress the importance of planning for serious illness (click here to learn more)
  • Language of these instructions often have you making treatment decisions regarding treatments that are not even offered in future clinical conditions that might arise. They lack ‘situational validity.’
  • These decisions are based on certainty, not conditions of uncertainty. Serious illness planning requires we acknowledge that there will be ‘uncertainty’ of the outcome at the point where we need to make medical decisions. At Plan Well Guide, we are NOT trying to get you make treatment decisions in advance but rather, we are trying to ‘prepare’ you (or your SDM) for future decision-making.
  • There are liability concerns that lawyers are engaging in health counselling practices that are outside the scope of their expertise.

Rather, instruct your lawyer to remove all ‘instructional directives’ and just say, “My agent or SDM has full authority to make all health care decisions on my behalf in consultation with my attending physician, and to instruct my health and personal care service providers. Myagent knows me and my wishes, beliefs, and values. I therefore do not wish to impose any specific restrictions on my agent’s powers to make decisions on my behalf, as I trust my agent to make decisions according to my agent’s understanding of my beliefs, values and preferences as documented on the attached “Dear Doctor Letter (Dated: Month/Day/Year)”

  1. Go to planwellguide.com and log in and make your plan finalize your “Dear Doctor” letter.
  2. Discuss the contents of the “Dear Doctor” letter with your family and your designated SDM
  3. Make an appointment with your lawyer to draft the legal documents to support the naming of your SDM, Power of Attorney and obtain a Will. Bring a copy of this blog to provide instructions to the lawyer on the appropriate language to put in the legal documents naming SDM. If you encounter any questions or resistance from lawyers to these best practices, have them reach out to Dr. Heyland directly and he would be happy to discuss the matter with them.

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