Advance care planning is the process of planning for your future care. An important component is documenting your wishes with respect to personal care and discussing them with your attorney for personal care, your family, and your friends, as appropriate.
Wishes can be expressed in your power of attorney for personal care or in a separate letter, often referred to as a "letter of wishes" or a "living will". You may also express your wishes orally, but that approach, while legally binding under Ontario law, may lead to a variety of problems, especially where there is a possibility that family members may challenge decisions made by your attorney. Your wishes may be specific or general, and your most recent wishes prevail over any prior wishes.
Your wishes are important because they guide your attorney for personal care when you are no longer capable of making personal care decisions on your own. If your wishes are unknown, your attorney must act in accordance with your best interests under the Substitute Decisions Act (Ontario) if you are subject to Ontario law.
Notwithstanding their critical importance, it seems that letters of wishes tend to be underutilized. Where they are used, they are often limited in scope to deal with end-of-life matters only, and not as often with a variety of non-health care matters. These matters are critical to our everyday lives, and should be considered in the formulation of any advance care plan. The following questions provide some guidance as to matters you may wish to consider and include in your unique letter of wishes:
- Do you prefer to remain in your home setting for as long as reasonably possible, as opposed to institutional care? In order to remain in your home, do you want to receive nursing and medical care in your home, such as may be provided by live-in or live-out caregivers?
- Do you have an accustomed lifestyle that you wish to be adhered to as much as possible?
- Under what circumstances would you want to reside in an institutional setting? Do you have a preference as to which ones? Do you have a geographical preference, such as one in your existing residential area or would you prefer to reside in one closer to your family or friends? What special services should be provided?
- Do you require special clothing, footwear or apparel? Do you have special hygiene or personal grooming requirements or preferences, including as to cost and service providers?
- Do you have special transportation requirements or preferences?
- Do you wish to pursue any special activities, including outings?
- Do you have any dietary preferences or restrictions?
If you have preferences with respect to any of the above matters, it is a good idea to express your wishes in a detailed manner, as opposed to relying on general statements.
Your substitute decision maker is not required to follow your wishes if they are not "applicable in the circumstances". This may be the case where your circumstances have changed since you expressed your wishes, or where your wishes are vague, unclear, or imprecise.
Take, for example, the following wish expressed by a person while young and healthy: "It is my wish that I remain living in my home until my death". It is likely this wish would be considered inapplicable if the person were to become totally dependent on others for his or her every need and required medical assistance that could not reasonably be provided in his or her home setting.
Instead of expressing your wishes generally, they can be tailored to your unique personal circumstances and they should contemplate various scenarios. It is important to update them as your circumstances change.
With our increasingly aging society, we can expect more emphasis on personal care issues as a core element of the estate planning process. By putting a comprehensive personal care plan into place, you increase the likelihood that your wishes - and not someone else's - will be carried out when you are no longer capable of making personal care decisions on your own.
Join us for our next blog post on administering foreign assets after death. In the meantime, if you have not had an opportunity to do so, we invite you to view a series of videos we recently created on a variety of general estate planning topics, including "Estate Planning: An Empowering Journey", "Thinking About Your Legacy", "Your Unique Team", "Estate Planning: An Organic Process", "Death and Incapacity: The Big 'Taboo' Subjects", "Living Longer", "Choosing Your Decision Maker" and "Losing a Loved One: First Steps", which we hope you will find helpful and informative.
The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.