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Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode number 209 on Tuesday, June 1st, 2010.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Natalia Angelini: Hi I’m Natalia Angelini.

Kathryn Pilkington: And I’m Kathryn Pilkington.

Natalia Angelini: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or visit our blog at estatelaw.hullandhull.com. So this is Kathryn’s first time podcasting. This should be fun.

Kathryn Pilkington: I’m a little nervous.

Natalia Angelini: No worries. We’ll take it as it comes. We’re actually talking about an interesting subject today, that of assisted suicide - a fairly controversial subject. But we came across a really interesting article last week in the Lawyer’s Weekly written by an Assistant Professor of Law at the University of Manitoba. And so we thought we would talk about that and also think about how it affects us from an estates standpoint. So Kathryn why don’t you start off by letting our listeners know what the article was focusing on.

Kathryn Pilkington: Sure, thanks Natalia. Very recently the House of Commons voted against a bill. It was entitled the Right to Die with Dignity Act. And it was defeated by a margin of 228 to 59. And so it was circulated by a private member last spring. And it deals with the issue of assisted suicide. It was criticized for a number of reasons. One main reason is that it wasn’t very clear and it wasn’t very clear with respect to medical practices for treating individuals suffering from terminal illnesses. So this would be such as the administration of narcotics or sedation. It might also have the double effect of hastening death. And one of the other reasons it was criticized is that it was very broad, perhaps overly broad. And one of the reasons it’s being called overly broad is that this bill sought to legalize death assistance beyond terminal illness to include assistance to individuals who are experiencing physical pain or mental pain.

Natalia Angelini: Right and it’s surprising that this debate hasn’t really found its way into the media in a big way. I certainly haven’t seen anything about it recently and the author of this article notes that perhaps the reason why in Canada we haven’t seen much or heard much about this topic is because there isn’t really a poster child that is out there, or at least that we know about, that can be connected to the issue. And that’s not the case in other parts of the world, and particularly the UK. But it may be that this issue comes more to the forefront and is something that everyone can chime in on because this bill being defeated may…it will certainly not end the issue there.

Kathryn Pilkington: Well yes. And I think that there are some very compelling stories in other jurisdictions. So the one that sort of struck me the most was the story about Daniel James who was a rugby player in the UK. He was 23 years old and he had an accident during training and he became paralyzed. So in September 2008 he went to Switzerland with his parents to die with the assistance of a Right to Die organization. And his parents were investigated when they returned to the UK but in fact there were no criminal charges met. But you can see how a story like that would really compel people to further their discussions about the debate around dying with dignity.

Natalia Angelini: Right and back to your point about the bill being too broad. I think one of the other concerns is that, and connected to it being too broad, is that it only required that a person appear to be lucid when making that decision, that written request to die as opposed to actually being lucid. And I mean that’s interesting to us from a capacity standpoint because as estate practitioners we deal with the issue of incapacity fairly often and it can be a testator, a donor of a Power of Attorney. So it’s definitely an interesting point that if the requirement is only that a person appear to be lucid, then who ultimately is going to be…

Kathryn Pilkington: Making that decision, right about end of life decision really.

Natalia Angelini: And another sort of interesting point from an estate standpoint is…well there’s two others that I can think of, which is if assisting someone to die falls outside the ambit of what’s allowable then it’s a crime, at least currently. So given the general rule of public policy that a person is precluded from benefiting from a crime, then what happens from an estate standpoint? You know there are cases out there where the Courts have applied that general rule to deny a murderer the entitlement to estate funds of the person that they’ve murdered. And one of those cases, in case anyone’s interested is Re Holmes Estate. It’s a British Columbia case, it was decided in 2007. So it’s interesting to think about what people would do to maybe be creative about their estate planning when they’re seeking assistance to die. And that sort of leads me to the other point that I find interesting which is, you know, what do you do? Do you gift your estate to your loved ones immediately before doing that? And if so, if there are issues of incapacity, that can create a whole array of problems that would very likely bring litigation to the forefront. What are your thoughts, Kathryn?

Kathryn Pilkington: Well I think that certainly it makes for a difficult situation when people are thinking about how to make plans with regard to their estate. It’s already a very complicated matter and making estate plans can be wrought with a lot of emotions. And I imagine that when you have somebody that’s making a decision to terminate their life and they are at the same time making decisions with respect to where they want their assets to go, you immediately start to wonder if there is any kind of circumstances at play that are suspicious or if this person may be unduly influenced, particularly when you go back to the point that Natalia had made earlier with regard to the idea that a person was only required to appear to be lucid. That’s concerning for me.

Natalia Angelini: Right. I could definitely see how a Will challenge, this sort of situation could give fodder to a Will challenge arising after death.

Kathryn Pilkington: And really when we think about the idea of incapacity, one of the things that concerns me and I think I touched on it earlier is end of life decisions. So right now I believe under the Health Care Consent Act someone who is acting as an attorney under a Power of Attorney document for personal care will be involved in end of life decisions and I wonder if deciding to terminate someone’s life because they’re suffering from mental incapacity could fall in the realm of their duties.

Natalia Angelini: Right. Or things they could actually do?

Kathryn Pilkington: Like how do you…right.

Natalia Angelini: Well I don’t mean to make light of it but the law is that an attorney can do anything except make a Will.

Kathryn Pilkington: Right.

Natalia Angelini: I would imagine that if this debate was really flushed out in Canada and some new law made that there would obviously have to be some amendments and revisions to the law as we know it regarding an attorney’s duties and what steps…how far that attorney can go.

Kathryn Pilkington: Well yeah, and I think that’s one of the reasons this Act was criticized because it did not have a lot of the safeguards that would need to be in place when pursuing this sort of significant legislation.

Natalia Angelini: Well I certainly find it to be an interesting topic and it’s sadly an area that, you know, may touch, you know, more people than we would like it to. And we certainly…you know as the author of this article rightly noted, you know if Canadians don’t take a positive step to respectfully discuss this issue, then you know we may fall victim to the other sort of slippery slope which is that the legalistic logic that displaces compassion in favour of autonomy as the sole consideration. And I think that’s certainly a place that we wouldn’t want to be.

Kathryn Pilkington: Very good point, Natalia. You know I think really that even though this piece of legislation was defeated, ultimately it’s a first step in a process to creating a bill that makes sense and is clear. And represents people’s interests and right in making the most important decision about their physical integrity.

Natalia Angelini: Well with that, I think that brings us to the end of today and we’ll think more on it. And if there are any other updates, we will certainly let you know.

Kathryn Pilkington: I was just gonna say it really was a pleasure podcasting today and meeting the audience.

Natalia Angelini: So Kathryn it was good to podcast with you too. We look forward to hearing from our listeners. Until next time, take care.

Kathryn Pilkington: Thank you.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

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