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Living Will

A living will is a kind of will that articulates your wishes regarding medical treatment in the event that you are unable to communicate those wishes yourself. It is also sometimes called an advance directive.

A living will allows you to specify the kind of medical treatment you would or would not want to receive in various circumstances.

For example, you should state whether you would like to receive life-sustaining treatment, such as artificial ventilation if you have a terminal illness.

In Canada, no law makes a living will compulsory for people of legal age. If you want to make a living will, the regulations that apply to you will depend on whatever province or territory you live in, and these laws might be somewhat different from one another.

However, there is a growing trend in Canadian courts to provide additional weight to living wills in making decisions about medical treatment.

If you are thinking about creating a living will, it is vital to understand the legalities around them in your province or territory. This article will provide an overview of living wills in Canada and some things to consider if you are thinking about creating one.

What is a living will?

A living will is a document that an individual uses to outline their intentions for their health care in the case of an emergency whereby they cannot express their wishes. 

Although both a living will and an advance directive are considered legal documents that may be used in the event of a terminal illness, the latter document provides far more detail and guidance. 

The goal of a living will is to notify other people of your wishes about medical treatment. If you are disabled, it implies that your loved ones and physicians won’t be able to ask you whether or not you would want to try out a particular medical procedure.

Doctors and hospitals will look to a living will to decide whether or not to continue providing care such as artificial respiration.

Only in the event of a terminal illness or when the patient is unable to express their treatment preferences verbally can living will become legally binding. For non-emergency and non-life-threatening medical treatment, doctors often don’t look to patients’ living wills. 

When people are unable to make choices about their medical care, they have the option of naming a healthcare representative to make those decisions on their behalf.

If there is no formally appointed healthcare representative, then the person’s spouse, other family members, or other designated individuals will have to choose their medical care.

The people mentioned above could misunderstand the patient’s wishes or refuse to act in accordance with the patient’s implied verbal orders.

Medical situations to consider when writing a living will

It would help if you discussed how you would like various possible end-of-life care options handled in a living will. A living will covers a wide range of potentially life-saving treatments and procedures, including cardiopulmonary resuscitation, mechanical ventilation, and dialysis.

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During heart failure

When the heart has stopped beating, a procedure known as cardiopulmonary resuscitation (CPR) may get the heart to start beating again. Stating this in your living will involves you deciding whether you want to be revived by a treatment such as cardiopulmonary resuscitation.

Another option is through the use of a machine that administers an electric shock to the chest in order to jumpstart the heart.

Donation of organs and other tissues after death

A living will allows you to make a decision about organ and tissue donation for transplantation.

You can note your decision about the donation of organs and tissues for transplantation in your living will. It is important to note that donating organs requires keeping you on life support until after the operation.

You may want to specify in your living will that you are aware of the temporary nature of this intervention to help your healthcare proxy avoid misunderstandings.

The incapability of breathing on one’s own

If you are unable to breathe entirely on your own, a machine called a ventilator would take up breathing for you. Think about whether you would like to be put on a mechanical ventilator, when you would be comfortable with doing so, and how long you would be comfortable with it.

Body donation

In your living will, you may also specify that you are willing to donate your body for scientific research. To do this, get in touch with a medical school or institution in your area for more information on how to sign up for a planned contribution to scientific study.

Dialysis

If your kidneys can no longer operate, you may need dialysis to control your fluid levels and eliminate waste from your blood.

You can think about whether you would want to have this therapy. You can then note your decision in your living will, indicating if you wish to get it and for how long.

How to make a living will

A living will describes the type, degree, and duration of medical treatment a person wishes to receive in the event that they are unable to make such decisions for themselves.

Since the legal requirements for a living will differ from state to state, many individuals choose to work with an attorney to draft their documents.

In the event that the individual cannot care for themselves or make choices for themselves, the living will lays out their last desires and priorities. Think about how you want your values or those of your faith to play a role in the care your loved ones get when you draft your will.

A living will that consists of many types of treatment as well as care may be easier to understand and implement. Consider figuring out when extraordinary measures, like blood transfusions and dialysis, are warranted in an effort to save a patient’s life.

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Make sure to specify if you want to be cared for even if you are in a coma or vegetative condition.

Please choose whether you like medical attention provided at a nursing home, in your home, or elsewhere. Nutrition may be given intravenously, orally, or withheld at your discretion.

The administration of pain medication is yet another aspect to think about. Research and list the many treatments and their respective intensities available to control pain.

This category may be further broken down into two subcategories: pain management which is life-sustaining, and pain management, which is in place of life-sustaining treatment.

Talk to the person or people who will oversee and supervise your care. They might provide valuable information to the decision-making process that would be missed by sole planning.

Finally, it is recommended to seek the advice of a qualified expert, such as an estate planner or an attorney. Professionals in these fields may advise you on how to proceed to maximize positive results.

How to make a good living will in Canada

A living will is a document that details your desires and choices for how you would want to be treated when you are unable to speak out for yourself or make decisions regarding your health care. In Canada, you can create this document in accordance with the requirements of your province. 

Writing a legally recognized living will is governed by somewhat different guidelines in each Canadian province. Although, there are some guidelines that are common to all provinces. Some of these guidelines are listed below;

  • Legally choose a representative for healthcare choices.
  • Issuing precise instructions for your medical treatment in every province. 

Canada’s living will provides medical professionals guidance regarding certain medical issues. In case you don’t want to make outright decisions in your living will, you can legally appoint a caregiver to make healthcare decisions on your behalf.

Factors you need to include in your living will

Living wills often cover a wide range of emergency medical interventions, including cardiopulmonary resuscitation, mechanical breathing, and dialysis. An individual has the option of allowing all of these processes, some of them or none of them.

In addition, one may choose whether or notal they would want to be an organ and tissue donor in the event of death. A patient who declines life-sustaining treatment may request pain medicine during their dying hours.

Additionally, if you have any religious or philosophical values, you may state them in your living will. This type of knowledge may be very useful in determining how your last days should be spent and what should be done with your body after death.

In general, a living will should include the following topics:

  • Individual treatment preferences for patients on life support
  • Considerations for artificial life support
  • Compilation of drugs you’re either willing to take or have rejected.
  • The procedures that you are considering doing or deciding against performing respectively.
  • Providers need to know whether you have any allergies or conditions.
  • Cases when you might like a peaceful passing
  • The choice to Donate an Organ
  • Decisions to be made towards the end of life
  • Regarding moral, religious, or philosophical convictions that could affect healthcare choices

Why you need a living will

A living will is very important because it will serve as a guide in case anything happens to you. Even if you pray, you will never have to use it. It is comforting to know you are protected if disaster strikes.

With a living will in place, it helps to ensure that your loved ones don’t have to deal with the stress of making tough choices for you in the case of an emergency. It is important to note that living wills are not for elderly ones alone.

Anyone of legal age should have a living will in case of emergency medical treatment towards the end of life.

Some unplanned situations such as Bicycle accidents, ski accidents, brain tumors, and strokes are just a few examples of the many emergencies that may occur to anybody at any age and frequently leave families in difficulty.

Creating a living will makes you concerned about the emotional health of your loved ones just as much as yours.

What is power of attorney?

Power of attorney refers to legal authorization that grants an appointed person the authority to act on behalf of another individual. The health care power of attorney and the financial power of attorney are the two primary kinds of power of attorney.

A power of attorney in terms of healthcare is an advance directive in which you nominate a person to make decisions about your medical care on your behalf if you are unable to do so. In the case of a health care power of attorney, this is literally a question of life and death.

The financial power of attorney is a document that grants the agent the authority to manage the principal’s business and financial affairs in the event that the principal loses their capacity to understand or make decisions.

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This authority includes the ability to sign checks, file tax returns, mail, deposit Social Security checks, and manage investment accounts. If your financial power of attorney is misused or exploited, you may be forced into financial ruin or even bankruptcy. 

To make sure your intentions are carried out to the fullest degree possible, you should pick your agent with the utmost care.

Appointing a reliable and competent individual as your agent is essential. This is because any error your agent makes will have the same legal weight as if you had made them yourself. 

Any reliable adult can be your agent. The agent can be a professional such as a lawyer or attorney. The agent can also be a family member, such as a spouse or grown kid.

The advantage of picking a family member over a professional is you may avoid paying the fees a professional agent would demand. Also, you get to keep your personal and financial information “in the family.”

Is a living will the same as health care power of attorney?

No, there is a slight difference between the two. Your wishes for how you would want to be treated by medical professionals in the event that you suffer from a terminal disease or are injured in a way that causes you to lose brain function, such as experiencing a head injury, are the primary emphasis of a living will. 

Whereas, when it comes to a health care power of attorney, you may grant another person the authority to make decisions about your medical treatment on your behalf.

It differs from a living will in that it may be used to direct care in a variety of medical settings, not only end-of-life care. However, similar to a living will, the proxy only has the authority to act on your behalf if you are unable to do so yourself. 

Difference and similarity between a living will and a living trust

There is a distinction between a living will and a living trust, despite the fact that both are often mentioned in the context of estate planning.

A living will specifies how the individual to whom it pertains will be cared for if they become disabled or compromised. When that individual passes away, this directive about their medical care will become null and void.

When a person becomes incapacitated, their assets and possessions are managed by a living trust.

The assets are transferred to the trust, which effectively takes care of the assets. A trustee, or group of trustees, is designated to oversee the trust’s assets following the terms of the living trust agreement.

Just as a living will deals with a living person, a living trust deals with the assets of a living person. The similarity between a living will and a living trust is that both are carried out when the planner is unable to make rational choices. 

Differences between a living will and last will

A living will and a last will are forms of will, but they have different functions. A living will is a document that entails a person’s wishes for the medical care they receive if they are unable to make such choices for themselves.

A person’s intentions about their medical treatment are carried out according to their living will if they cannot make such decisions for themselves.

The last will is a document that contains the preferences of an individual regarding the distribution of their assets or other aspects of their estate after death.

One of the most important differences that can be made between the two kinds of wills is the point in time at which the contents of a living will and the provisions of a last will come into play.

A living will goes into effect while the individual is still alive but unable to make decisions for themselves. At the same time, a final will only takes effect after the individual has passed away. 

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What happens if you don’t have a living will?

If you die without leaving a living will, the authorities of the province in which you reside will have the power to decide how your assets should be distributed and who should serve as your executor.

Your property is made up of all of your assets, which may be defined as everything you possess that has monetary or other worth, as well as any obligations that are still owed after you pass away.

Because the government needs to take into consideration the specific needs of various families, the disposition of your inheritance may wind up being very different from what you had hoped for, and this might be the case regardless of the jurisdiction in which you live.

So to avoid this, make sure you draft a will once you meet up with the requirements needed.

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September 5, 2023
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FAQs about living wills in Canada

What is a living will?

Suppose you are unable to communicate your desires about medical treatment and personal care at the appropriate moment. In that case, you should have your requests regarding medical treatment and personal care set down in a legal document known as a living will. Some people refer to a living will as a "Health Care Directive" rather than the phrase "living will." The use of a living will may help family members avoid feelings of guilt and conflict. It is possible that a family may feel guilty for putting a loved one through unnecessary tests and treatments if they urge physicians to do "everything" they can to save the life of a member of their family, but the person still passes away. On the other side, if they allow their loved one to "die with dignity," they may regret not doing more to save their loved one's life in the future. But leaving a will behind ensures everyone rests assured that the decision taken is in line with what the individual wants.

Is it necessary to have a lawyer when writing a living will in Canada?

In Canada, you do not need the assistance of an attorney to create a living will. This is because all adults are urged to draft their living wills, but not all adults have access to legal assistance. Instead, most provinces ask that you sign the paper in the presence of a witness or witnesses. There are many options available to you when creating a will. Will kits, online wills, or even writing your own will by hand (holographic will) are just some of the many legal ways that you can create a will for yourself in Canada. After completing a living will, it will be printed out and signed in front of witnesses in order to turn them into legally enforceable documents if you reside in Canada.

Why do people choose a healthcare proxy?

A healthcare proxy is a special kind of power of attorney for healthcare decisions. In the event that you become incapacitated and unable to communicate your healthcare wishes, you may name a proxy who will be granted legal permission to act on your behalf. Usually, this happens while you are unconscious or when your mental condition prevents you from making sound choices.

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