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Feb 3, 2020
Services: Wills and Estates

Can I Use a Power of Attorney for Personal Care to Direct Medical Assistance in Dying?

Canadian law does not currently permit a person’s wishes for medical assistance in dying (MAID) to be directed through a power of attorney for personal care (POAPC). In order to access MAID, a person suffering from a condition is required to have the capacity to personally consent at two times:

  1.  When requesting MAID;
  2. Immediately prior to the procedure taking place. 

This means, the authorization cannot be delegated to another individual, especially through a document that is intended to be used once a person has lost the capacity to personally consent.

Eligibility Requirements for MAID

MAID became legal in 2015 in accordance with the Supreme Court of Canada’s decision in Carter v Canada, which found parts of the Criminal Code to be unconstitutional. As a result, the legislation was amended to allow MAID in specific circumstances. 

The new legislation attempts to balance the court’s ruling against the need to protect vulnerable individuals from being persuaded or forced to access MAID. 

As a result, an individual must meet all the following conditions in order to access MAID: 

  1. be eligible for health services funded by the federal government, or a province or territory;
  2. be at least 18 years old;
  3. be mentally competent;
  4. have a severe and incurable medical condition;
  5. make a voluntary request that is not the result of outside pressure or influence; and
  6. give informed consent to receive medical assistance in dying.

Point 4 is further defined as,

  1. having a serious illness, disease or disability;
  2. being in an advanced state of decline that cannot be reversed;
  3. experiencing unbearable physical or mental suffering from an illness, disease, disability, or state of decline that cannot be relieved under conditions that you consider acceptable; and
  4. being at a point where natural death has become reasonably foreseeable.

A person’s eligibility for MAID must be determined and confirmed by two independent doctors or nurse practitioners upon request.

How this Applies to POAPCs

The effect of the above is that only the individual can give directions to receive MAID. 

This cannot be delegated to anyone else, which includes an attorney for personal care. To ensure vulnerable individuals are protected, the legislation requires informed, personal consent from the individual.

The first time the individual is required to consent is at the outset of requesting MAID. This informed consent requires the individual to understand their diagnosis, available forms of treatment, and available options to relieve suffering, including palliative care. 

Accordingly, even assuming this power could be delegated to another person, a blanket POAPC would not be effective consent unless the person has already been diagnosed with such condition. 

Following the first consent, the individual must wait at least ten days before accessing the procedure. Immediately before the procedure, the doctor or nurse practitioner must obtain a final informed consent. Consequently, an individual must have capacity immediately prior to their death. 

Conclusion

The current state of the law does not permit MAID directives to be effectively included in POAPCs. First, the legislation does not permit delegation and requires the individual to make all informed consents. Second, the individual is required to consent – and therefore have capacity – immediately prior to receiving MAID. Third, the legislation requires that an individual already be suffering from the illness, disease or disability.

Since the legislation is relatively recent, legislative review and reform may change these provisions. However, most concerned groups are lobbying for the ability to provide an advance directive related to an illness, disease, or disability from which they are already suffering, rather than the ability to include their wishes in a POAPC. 

Since the legislators are primarily concerned with protecting vulnerable individuals from unwillingly accessing MAID, it is highly unlikely that any legislative amendment will allow someone to consent to MAID on an individual’s behalf.

If you have any questions related to a Power of Attorney for Personal Care, including how Medical Assistance in Dying might apply to it, please reach out to one of our lawyers in our Wills and Estates practice group. 

Related Team

Jennifer McBlain

The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.