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Mummies are exhumed and studied in the name of science, but should they have the right to rest in peace?  Scientists are tackling the issue of whether there are ethical reasons to reconsider performing invasive procedures on ancient mummies.  If studies were performed on modern tissue samples, consent would be required.  But, a mummy cannot provide consent.  In Canada, an autopsy requires the permission of the deceased's family, unless the death was sudden or from unnatural causes. 

On the one hand, although few religions ban autopsies, some religions place a strong emphasis on the inviolability of the human body and view anything more than cleaning the body after death as disrespectful.  On the other hand, autopsies also provide a benefit to society, such as improving medical technology. 

Is the ethical reason that it is acceptable to perform an autopsy on a mummy that the mummy has no family members who can grant consent?  However, in Pennsylvania, a coroner was put on trial in 2008 for performing autopsies on unclaimed bodies from the county morgue when there were no family members who could grant consent. 

Or perhaps a mummy is simply too old to have privacy rights.  However, the Royal Commission on Aboriginal Peoples reported, "A final threat to the integrity of sacred and historical sites comes not from development or legislation but rather from archaeological endeavours.  The search for historically and culturally significant objects often leads archaeologists to burial grounds.  Aboriginal people have asked that these objects be left in the ground and that graves not be disturbed out of respect for the dead and in recognition that the burial grounds remain the collective property of Aboriginal people." 

Where should the balance be struck between the pursuit of research and respecting the wishes and integrity of a person after death? 

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Parents, inherently, try to help their children.   Initially the help your kids need is easy to determine; food and sleep, being the obvious requirements. As they get older, their needs change. It starts with something simple like homework, generally progresses to how to deal with the high-school break up, maybe eventually getting into the existential “What should I do with my life? What should I be?” Clearly, I’m over-simplifying. This slight hyperbole is still likely to resonate with most people, especially parents. Helping your kids is a natural inclination.   Yet when a mother (a lawyer), accepted service of materials on her son’s behalf in a recent family law matter before the Ontario Superior Court, it spurred enough debate to come up on appeal and to be addressed in a recent article in Law Times. 

The matter that brought this issue before the court seems to be a fairly standard family law matter. Yet, as noted, a mother agreed to accept service of materials on her son’s behalf. An interlocutory order was made, ex parte, indicating that it would not be appropriate for the mother to act as counsel, as it may be prejudicial to a determination on the matter. The judge also provided a direction that counsel should consult with the Law Society to establish an ethical basis for representation. It should be noted that the relief granted was not sought by the wife in this matter, but was a conclusion reached by the Judge on the evidence included in the motion seeking substituted service.  The Order was brought before the Superior Court of Justice seeking leave to appeal and leave was so granted.  A copy of Justice Boswell’s decision on this issue can be found here.

The Court’s review of lawyers obligations under Rule 2.04 in the Rules of Professional Conduct and the accompanying summary, are given thorough consideration by Justice Boswell on the motion for leave to appeal. The findings in this matter seem limited to the issue of whether a family member can act as legal representation in family court. Yet, the issue could be drawn across many legal fields, in particular Estate litigation, where families and emotions play very prominent roles. The Court’s conclusion, that a case by case analysis is required where such severe restriction on a party’s choice of counsel is considered, seems in line with the fundamental principles of ethics we all learn when preparing for the bar exam. Still, I doubt that this is the last time I’ll see this issue appear before the Courts.

Food for thought,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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In 1993, the Supreme Court of Canada ruled (with a five to four majority) in the Rodriguez case that section 24(b) of the Criminal Code was not unconstitutional in prohibiting assisted suicide. The following quote from the decision succinctly explains the reasoning of the Court:

“Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code.  The long‑standing blanket prohibition in s. 241(b), which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.  This state policy is part of our fundamental conception of the sanctity of life.  ...  No consensus can be found in favour of the decriminalization of assisted suicide.  To the extent that there is a consensus, it is that human life must be respected.  This consensus finds legal expression in our legal system which prohibits capital punishment.  The prohibition against assisted suicide serves a similar purpose.  Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society.  Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts.  Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair.  The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society.  Section 241(b) therefore does not infringe s. 7 of the Charter.”

Notwithstanding this decision of Canada’s highest court almost 20 years ago, the Canadian Lawyer (October 2011 issue) notes that the issue is coming before the Supreme Court of British Columbia on November 15, 2011 in the case concerning the family of Kay Carter. Her family accompanied her to Switzerland, where she died by assisted suicide at the Dignitas suicide centre. The issues to be decided in the case appear to be whether Carter’s rights were violated by a law that prevented her from dying by euthanasia or assisted suicide in Canada, and whether Carter’s daughter and her husband broke the law by aiding her in planning for and going to the Dignitas suicide centre. Constitutional and conflict of law issues will likely both be at play at the hearing. 

The decision will be something to watch out for.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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“No religion prohibits organ donation.”

This is according to an article posted on the Toronto Star’s “Health Zone”. The article by Barbara Turnbull entitled “Religious leaders confront myths that stop faithful from donating organs” notes that in the GTA, just 12% of the population has registered as organ donors.  This may be a factor of the GTA’s rich diversity of culture.

The prevailing belief among many religious groups is that preservation of the integrity of the body is required upon death. However, no religion prohibits organ donation, and many religious leaders from various faiths are working to change the prevailing public opinion.

The article quotes Jewish, Muslim and Hindu religious leaders: all of whom support organ donation. However, they note that much work must be done in order to overcome prevailing attitudes. “We have to change it so that it’s not only okay to do it, it’s not okay not to do it”, says Rabbi Reuven Bulka.

The article reports that 1,547 people are awaiting organ transplants in Ontario, and every three days, someone dies while waiting for a transplant. Hopefully, these numbers will change for the better.

Have a great Thanksgiving weekend. And please sign your organ donation card.

Paul E. Trudelle - Click here for more information on Paul Trudelle. 

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No more lineups at your local ServiceOntario kiosk.  No more downloading forms (only to have them wait patiently by the front door for the mail strike to end, but I digress).  At long last, residents of Ontario can now register online as an organ and tissue donor on a new website: BeADonor.ca.

In August 2010, I blogged about the tedious and onerous process of organ donor registration in the province that existed at that time.  Adding to the confusion is the widely held belief that carrying a signed organ donor card is tantamount to formal registration.  It isn't, and therein lies the glitch; a signed donor card is not recorded in the Ministry of Health and Long-Term Care's database, is often out of date, and is then subject to conflicting family wishes. 

There is no cost to register.  Online registration is easy, convenient, and secure.  1,500 people in Ontario are waiting for an organ donation right now.  Ontario's Health Minister, the Honourable Deb Matthews, issued a challenge on Tuesday when she expressed her hope that 1,500 new people will register by the end of the week.  If registering to be an organ/tissue donor has been on your 'to do' list for a while, take a few minutes and cross this one off. 

BeADonor.ca.

Jennifer Hartman, guest blogger

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A Vancouver court is about to make a decision that will have a significant impact on the world of Estate litigation. The issues before the court, related to sperm-donation, have become so much a part of our culture that a movie dealing with some of the same issues is nominated for four academy awards.

A Toronto woman has launched a lawsuit challenging B.C.’s Adoption Act arguing that she has a right to full knowledge of her history.   Ms. Prattan was conceived with the assistance of a sperm-donor, who chose to remain anonymous. Ms. Prattan clearly takes the position that she is entitled to information relating to her biological father. The matter has been heard and Justice Elaine Adair is expected to render her decision soon.

A recent article in the National Post outlines a significant number of arguments, on both sides of this fight. The long term impact of whether a child will have access to information which was given without the intention that it would ever be shared is still likely too fresh to digest.

Sweden, Norway and the Netherlands have already banned anonymous sperm-donations. With this matter moving its way through the courts, Canada may not be far behind. However, an old adage states ‘with knowledge comes power’, and it certainly holds true, in respect of how this legal issue plays out in the Estate litigation field. 

With sperm-donation being only approximately half a century old, and having dealt with significant legislative changes and requirements throughout its short history, the legal world continues to bounce along and keep up with society and our ever increasing demands. I know that I for one and curious how this matter will turn out, and whether children borne with the assistance of sperm-donation, who may now have access to previously confidential information allowing them to know their parentage, will legally be treated as heirs. 

Stay tuned….

Nadia M. Harasymowycz - Click here  for more information on Nadia Harasymowycz.

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My friend owns a Chrysler dealership, and at the bottom of each of her ads, she includes a note in tiny font suggesting “Wise customers always read the fine print”. Those pondering organ donation in Ontario would be well-advised to follow this same adage. A number of significant changes have been made to the organ donation system in the Province:

• In addition to signing your Gift of Life Donor Card and informing your immediate family members of your choice to donate any/specific organs/tissue, you need to register your consent to donate. If you just carry the paper donor card, your wishes are only known to the extent that you have informed your family and friends. Once you register your consent to donate, your information is stored in a Ministry of Health and Long-Term Care database.
• To register consent, you can either: i) visit an OHIP office when you renew your health card; or ii) download a Gift Of Life Consent Form, fill it out and mail it to the address specified on the form. Online registration may be available at some point in the future.
• As of December 2008, you are no longer able to register a decision of “No” (i.e. No, I do not wish to donate organs/tissue). Only “Yes” decisions are now stored in the OHIP database. It is important to note that as of July 1, 2009, if you had previously registered a decision of “No”, this decision will “no longer be used or disclosed by the Ontario Government to Trillium Gift of Life Network”. Interesting catch-22: Should you choose to not register your consent, are you, by default, regarded as a “No”? The answer, is NO. If you do not register your consent, the TGLN will approach your family to discuss organ donation and your family may consent on your behalf if you are unable to do so.
• Your consent can be withdrawn at any time (again, by visiting an OHIP office, or in writing).

Spain, Italy and Austria all practice ‘presumed consent’ in which organs and tissue are considered property of the state unless one actively opts out. In 2007, the Health Law Section of the Ontario Bar Association, commented that an opt-out regime would be too radical a shift from the existing opt-in regime to garner public support. To wit, in a poll published late last week by Canadian Blood Services, 45% of Canadians were strongly opposed to a ‘presumed consent’ system of organ donation.

There are currently more than 4,000 Canadians waiting for organ donations, and each year, more than 200 die awaiting transplant.

Jennifer Hartman, guest blogger

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Estates lawyers are particularly good at advising others as to the importance of an air-tight succession plan. But when it comes to our own succession planning, there are special considerations that lawyers, or any professional, should take into account.

Sole practitioners make up 23% of Ontario lawyers.   When you add the number of solos to those working in small firms, you get a whopping 97% of firms in Ontario with 1-10 lawyers.  In such situations, there may not be anyone ready, willing and able to step in for a lawyer who suddenly can not carry on his or her practice.  

Lawyers have ethical and professional obligations to their clients. This includes a duty to safeguard clients’ interests in the event of the lawyer’s untimely death, disability, impairment or incapacity. Not only could a client face significant prejudice or damages, but without proper planning, the obligations may fall to the lawyer’s family, causing additional stress no one would wish on loved ones.  

Here are some practical tips:

1. Make arrangements for an assisting lawyer to continue, close or transfer your practice on your behalf;
2. Store all critical information in a location that is easily accessed;
3. Have the appropriate Powers of Attorney in place that are required to allow the assisting lawyer to step in and run your practice (limited, bank, etc.); and
4. Include in your Will an executor who is a lawyer.

Click here for some guidelines for the lawyer stepping in to take over the practice from the Law Society of Upper Canada's Website.  Also from LSUC is the Succession Planning Tool Kit. See here and here for succession planning resources from the Law Society of British Columbia's website.   

For some variety, you might also want to pick up the materials from the 5^th Annual Solo and Small Firm Conference held May 14, 2010 in Toronto, where you can find tips on succession planning as well as other useful information to assist your practice. 

 Sharon Davis - Click here to learn more about Sharon Davis.

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Yesterday’s blog spoke to the issue of an Application for Psychiatric Assessment (Form 1) under the Mental Health Act R.S.O. 1990. To review, upon completion of the psychiatric assessment, the patient must either be released or admitted as an involuntary patient, a voluntary patient, or an informal patient.

• Involuntary Patient: Before you become an involuntary patient, a doctor must assess you and place you on a Form 3 (Certificate of Involuntary Admission), which lasts for two weeks. The Mental Health Act speaks very specifically to the legal criteria that must be met in order for such a Certificate to be completed. An involuntary patient is not permitted to leave the hospital or psychiatric facility.

• Voluntary Patient: There is no portion of the Mental Health Act that authorizes a psychiatric facility to detain a voluntary patient. In this regard, a voluntary patient can leave the facility at any time, as long as they do not pose a risk to themselves or others. If they were to be identified as posing a risk to themselves or others, then they must be made an involuntary patient (by means of a Form 3) in order to be detained.

• Informal Patient: An informal patient is either a child under the age of 16 years, or someone who is incapable of making treatment decisions for themselves (as defined by the Health Care Consent Act) and who therefore has been admitted to the facility under the consent of another person (i.e. ‘substitute decision-maker’; usually a concerned family member). The informal patient cannot be held against their will in the hospital, however, an informal patient can be made ‘involuntary’ if a doctor deems that a Form 3 is necessary.

Jennifer Hartman, Guest Blogger

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Listen to Guardianship in Canada

This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today's laws (post-1994) are clearer than they were in the past.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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Here’s a story from Calgary that will make every lawyer tremble documenting the conviction of a mother of three, and assistant at a law firm, for misappropriating $1.4 million from the firm’s trust account.

A great reminder of the need to restrict access to a trust account and exercise vigilance in who can access it. Of course, in the hustle and bustle of practice it is possible for these types of basics to fall to the background as we try to satisfy clients with the outcomes of their cases.

Most lawyers I know operate on the assumption that everything which leaves their office, including trust cheques, is their responsibility. Since not everything in every case can always be reviewed, that implies a certain amount of trust towards assistants, clerks, and other support staff. It also implies that it is very wise to know the people that work for you, and consciously keep up with them from time to time.

Nothing will protect from every rogue of course, but you never know what you might find out by staying on top of things…

Thanks for reading.

Sean Graham

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My last blog this week examines the application of our favourite Rule 57.07 - Liability of Solicitor for Costs - in the context of affidavits.  We (and our clients) have all suffered through The Angry Affidavit.  In Manitoba, which has comparable legislative provisions authorizing and governing cost awards, drafting such an affidavit can be expensive for the drafting lawyer.   

In Eblie v. Yankowski, [2007] M.J. No. 145, the court awarded costs against the solicitor personally where an affidavit contained irrelevant, scandalous, vexatious and frivolous.  It was not enough to simply type what the client wanted to say.  The solicitor was responsible for drafting and presenting the affidavit material, and had caused costs to be incurred without reasonable cause.  In this case, the costs incurred included a motion to expunge the impugned material. 

Further, the court made the interesting comment: "It is difficult to accept that these materials were not prepared and filed for an improper purpose, namely to prejudice the mind of the court against the opposite party. If their inclusion in the affidavit filed by the Petitioner was intended to gain undue advantage and to defeat the course of justice costs against counsel personally are clearly warranted."  

For those interested, section 96 of Manitoba's Court of Queen's Bench Act is nearly identical to section 131 of Ontario's Courts of Justice Act in creating jurisdiction to make discretionary cost awards.   Manitoba's Rule 57.01(1) is similar in all relevant ways to Ontario's Rule 57.01(1), and Manitoba's Rule 57.07 similarly imposes potential personal liabilty on solicitors.

Enjoy your weekend,

Chris Graham

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"To visit Machupijchu, you must prepare the soul, sharpen the sense.  Forget for some minutes, the small and transcendental problems of our lives, of modern man..."   Napoleon Polo, Cuzco Peru.

 In 1911, Yale history professor Hiram Bingham III stumbled upon Machu Picchu, 'the lost city of the Incas' (click here for an incredible virtual tour).  For centuries, the treasure trove of ancient Incan art and artifacts had been lost to the Peruvian people.  Backed by Yale and the National Geographic Society, Bingham excavated nearly 5,000 objects over the course of several trips to the sacred site, including statues, jewellery, instruments and human remains.  He then sent the relics to Yale's Peabody Museum in New Haven, Connecticut.

Was their transfer a loan or a gift?

In 2003, when Yale launched a major touring exhibition featuring the artifacts, the Peruvian government commenced negotiations to get them back.  Their argument rested on the existence of a letter discovered in the National Geographic Society archives by Terry Garcia, executive VP of the Society.  The letter, written by Bingham to Yale University, revealed that the artifacts "do not belong to us, but to the Peruvian government, who allowed us to take them out of the country on the condition that they be returned in eighteen months."  The National Geographic Society concluded that the artifacts that had been removed from Machu Picchu were indeed a loan from the Peruvian government, and not a gift.

Artifact ownership is a sticky issue.  Thomas Kline, of George Washington University explained to the National Geographic Channel that if a museum returns ancient artifacts too quickly, they may not be honouring their duty to "preserve and protect objects in the collection".

Yale and the Peruvian government ultimately worked out a compromise of sorts.  Yale agreed to return most of the objects following the completion of the travelling exhibition co-sponsored by the two parties, and has since acknowledged Peru's title to all of the excavated objects.

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Who can forget the sad case of Terry Schiavo, the poor lady who suffered catastrophic brain damage in 1990 and was kept alive in a vegetative state on a feeding tube for 15 years?  Readers will remember the anguish involved when her husband was forced to litigate against her parents in order to get the tube removed so Terry could die in peace.  This became a powerful argument in favour of a "Living Will", which is basically a document in which individuals outline their "personal choices" regarding end-of-life treatments.  Living Wills became a feel-good legal product, a perceived solution to the heart-rending situations like Terry's.

Too bad the research shows that Living Wills may not live up to the hype.  According to a recent study by two University of California Irvine researchers, Professors Peter Ditto and Elizabeth Loftus, Living Wills appear to have serious defects.  One problem is that patient preferences change over time.  For instance, one tends to be more inclined against end-of-life treatments immediately after a hospital stay, but this changes with time.  Also, positive treatment results of family members make a patient more inclined to end-of-life treatment.  Many people who make Living Wills change their preferences but forget about their Living Will, or misidentify those preferences in the Living Will. 

Perhaps the most glaring weakness is that Living Wills do not appear to provide guidance  to surrogates who have read them.  According to the study, the accuracy of a surrogate who has read a Living Will in prediciting a loved one's treatment preferences is no higher than that of a surrogate who has not read the Living Will.  So a Living Will can be totally inconsistent with the patient's most recent intentions.   

Having a Living Will apparently makes both the patients and the surrogates feel better, so it's not all bad news. 

Have a safe day,

Chris Graham

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Following up on Allan Socken’s blog of March 31, 2008 entitled “What is Legacy Coaching”, I came across an article in the American College of Trust and Estate Counsel Journal entitled “Is Your (Ethical) Will in Order?” (2008) 33 ACTEC Journal 154 by Zoe Hicks. In her article, the author reviews what an Ethical Will is, what types of topics are normally covered, the format of the Ethical Will, and how estate planning practitioners have embraced the concept of advising clients with respect to leaving an Ethical Will.

Essentially, an Ethical Will is a testament of what you want your survivors to know, rather than what material assets you want them to have. Ethical Wills can include expressions of wisdom, values and beliefs of the “testator”, reminders of heritage, apologies, explanations of actions taken or not taken, regrets, expressions of love and gratitude, and words of encouragement.

Ms. Hicks sets out numerous extracts from Ethical Wills so that the reader can get a flavour of the types of matters that an Ethical Will can to address. She concludes by observing that an Ethical Will can be a valuable exercise for both the writer and the recipient.

For more information, read her article, or visit www.ethicalwill.com. This site explains the concept, and provides several examples of Ethical Wills in different forms. 

Have a great weekend.

Paul Trudelle

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A massive $110 million lawsuit has been brought by the Attorney General’s office in California against a “living trust mill that tricked senior citizens into using their retirement savings to buy annuities that often made less financial sense for the elderly victims but earned the con artists substantial commissions and other income.”

Estate Planning Law Firms.com quotes the Attorney General as saying the following:

“The perpetrators of this fraud deceived seniors into using their hard-earned retirement nest eggs to buy unneeded annuities that actually undermined their financial security. Living trust mills such as this one violate not only the law, but the trust of their elderly victims.”

What surprised me was the apparent scope of the alleged organization being sued by the Attorney General: between 250 and 300 sales agents and another 80 telemarketers were involved, allegedly soliciting elderly consumers through mailings, seminars, telemarketing, presentations at senior centers and other means, marketing their services as a way to avoid probate and estate taxes, then eventually convincing seniors to buy annuities that were, according to the Attorney General, not in their best interest.

Without commenting on this particular case, there does seem to have been a disturbing and growing trend in recent years of attempts to deprive the elderly of the considerable wealth concentrated in their hands.  

One more reason, if any were needed, to take great care in choosing investment and estate planning advisors.

Thanks for reading.

Sean Graham

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Yesterday, we read about Franz Kafka's unfulfilled wishes with respect to his manuscripts, both published and unpublished, at the time of his death in 1924.  Flash forward eight decades or so.  Dmitri Nabokov, the 73 yr old sole surviving heir of Vladimir Nabokov, continues his 30-yr struggle with his father's deathbed request that his last unpublished work, The Original of Laura, be destroyed.  The stakes are high for Laura; at one point, Dmitri referred to it as "the most concentrated distillation of [my father's] creativity."  The task of burning the manuscript was originally entrusted to Vladimir's wife Vera, but when she died in 1991 she had not yet carried out her husband's last wish.

As discussed in the Business Standard, those in favour of heeding Nabokov's wishes are not willfully destructive.  It is understood that great writers might work through countless drafts before arriving at a final product that meets their approval.  On the other hand, there's the argument that writers (including Kafka) seldom can judge their own work.

The long twisted saga may find its fate as a cliffhanger of sorts.  In a dramatic verdict, Dmitri indicated late last month that he had indeed "decided to make a decision" about what to do, but that he would "neither disclose publicly either the decision or the deed."  Apparently (or should I say apparition-ly?), Dmitri reached his decision after an imagined ghostly conversation with his dead father.  Stay tuned for the future unveiling of either a box of Laura's ashes or what might be Nabokov's greatest literary work.

David M. Smith

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Several recent stories in the news highlight the importance of making sure your estate plan includes a directive for health care in the event you are incapable of making health-related decisions.  Diane Sawyer, speaking on a segment for ABC news recently, covered the amazing story of a 65 year old woman who awakens from a coma after suffering a cerebral hemorrhage (watch the video here).

Regrettably, the outlook for many terminally ill patients is not as rosy and not every person faced with such odds gets a second chance.  Reminiscent of the case of Terri Schiavo in 2005, a father of a brain-damaged 23 year old has appealed a ruling by the Delaware Court of Chancery that could allow the removal of a feeding tube and end her life (read about it here).  Lauren Richardson was pregnant at the time she fell into a persistent vegetative state, and she was kept alive to enable her to give birth (which she did successfully last year).  The Court has now granted guardianship to her mother, who insists her daughter did not wish to live this way and wants the artificial life support measures withdrawn.      

In Ontario, having a Power of Attorney for Personal Care and a Living Will in place will ensure that your intentions regarding treatment will be considered.  Without the guidance afforded by these critical documents, your family may be unable to carry out your wishes (such as discontinuing medical treatment where there is no hope of recovery).  Including health care directives as part of your estate plan also enables you to specify instructions, such as requesting medication to alleviate suffering or distress, even though this may hasten the moment of death.

Sarah Hyndman Fitzpatrick