The Ins and Outs of a Living Will
June 30, 2021
Broadly speaking, a living will is a document that sets out how you would like to be cared for if you become medically incapacitated in some way, either partially or completely, short-term or long-term. The expression “living will” is commonly used in Canada but our provinces use their own terms to describe the same type of planning document(s). And in this time of Covid-19, where illness can be sudden, making a living will while you are healthy and competent is more important than ever.
What is the difference between a living will and a last will and testament (will)?
A will is a document that comes into effect once you have passed away. A living will is used while you are still alive, but cannot make certain decisions for yourself. For example, if you are in a coma or are otherwise incapacitated, a living will can indicate who can make decisions on your behalf (a personal agent, healthcare representative, or similar term).
What’s the difference between a living will and other common terms like advance directive?
In most provinces, a living will, an advance care plan, a power of attorney for personal care, an expression of wishes, and an advance/personal directive are terms that are sometimes used interchangeably, although there can be differences between them. A power of attorney for personal care, for example, deals with who can make medical decisions for you, while an advance directive can be broader. In general, they all refer to a document or documents that are prepared in advance to help make medical decisions easier for your friends and family in case you’re not able to make them on your own.
In Quebec, there are no living wills per se, but Quebecers do have the right to agree to or refuse medical treatment and so they are free to express these wishes in advance. However, these are different than an advance directive which is more formal and deals with whether or not you’d like to receive a set number of specific treatments (CPR, for example) in specific circumstances.
We can certainly advise you on what documents are needed in your province or territory and how to draft them.
Who should get one?
As mentioned above, a pandemic is certainly a good time to consider making a living will. With so much illness, sadness and stress, having one in place can make things easier if someone falls ill. Anyone who feels strongly about how they will be treated in a medical emergency should consider a living will. Having one can make decision-making easier on your friends and family in a time of extreme stress. Making your wishes clear in advance removes the responsibility (and sometimes the guilt) that comes with making life-altering decisions for a loved one.
What’s in a living will?
In general, a living will can include:
a. Designating someone you trust to make decisions on your behalf. This person should be able to express your wishes if you cannot. This can be a friend or family member.
b. Making sure that within the document(s), you are clear about the level of authority you want this person to have over your wishes. Do you want this person to follow your instructions exactly or to be able to make their own decision based on your current circumstance?
c. What medical treatments do you consent to and which do you refuse? These typically include CPR and life-support.
d. Organ donation, in addition to signing your health card or any other way your province has put in place to express your wishes.
e. Palliative care, meaning ways to reduce any pain you may be in.
f. Your basic information: medical history, medical contacts, and religious beliefs, for example.
You want your wishes to be as clear as possible so there is no misunderstanding if you are ever incapacitated. In some provinces, more than one document is required.
In this Covid-19 period, people are thinking more about their mortality than ever before. Each province has its own guidelines for how to create a living will (and complementary documents). Although you can sometimes create these on your own, we would suggest seeking legal advice to make sure you have the right documents for your province, and that the content of your living will expresses your wishes in a clear and concise manner. And we can help you keep your documents up to date.
Articles on the LegalShield.ca website are for informational purposes only and do not constitute legal advice or opinion in any manner. Laws mentioned in the articles vary from province to province. Any links to third-party sites in our articles are for general information purposes only and LegalShield is not affiliated with, nor does it endorse, the content of linked sites. It is always advisable to seek legal counsel - and LegalShield can help.
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