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Wills - Living Wills


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The following is no substitute for advice provided by a lawyer specifically for you. It is intended only to help you understand that advice. No responsibility is taken for any problems arising except due to paid legal advice.

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Living Wills

A Living Will is intended to control the type of medical treatment given to you when you are incapable of deciding or communicating, and/or to designate somebody to make those decisions.

After some period of uncertainty, the Saskatchewan government passed the Health Care Directives Act which legitimizes such documents.

The legal effectiveness of such documents is still not completely clear. If a doctor gives you a treatment you forbade, what is the result? Certainly the treatment was illegal, but what are the damages? If you are cured, it is hard to imagine a court ordering the doctor to pay you. If not, you would not have been cured anyway?

However, the medical profession has been cooperative, even active, in promoting this concept.

The medical practitioner must be aware of the Directive, yet there is no registry or other mechanism to ensure that hospitals can find it. Delivering one to your family doctor and ensuring that your closest relatives are aware of it is strongly recommended.

The medical profession sometimes puts out samples for the public to use. It is our experience that they tend to focus on what specific treatments are desired and rejected. For instance, see the documents from the Centre for BioEthics.

Certainly that would make it convenient for the doctor, but we question the wisdom of designating specific treatments in advance. First, people often think much differently when actually confronted by a situation. Many healthy people state they would prefer to die than be crippled, yet the percentage of disabled people who commit suicide is very small. Second, it is the result of the procedure and not the procedure which interests most people. Being placed on total life support is fine if it is necessary to get back to normal, but not so good if intended as a permanent result.

The aspect which designates somebody to speak for you is the best part of the concept, in our view. You must carefully ensure that person shares or respects your opinions on treatment. That in turn, means you must consider the issue, which is also a good thing.

The following document is provided by the UNIVERSITY OF TORONTO CENTRE FOR BIOETHICS for their approved form, which you may obtain from us.


UNIVERSITY OF TORONTO CENTRE FOR BIOETHICS

LIVING WILL

The Centre for Bioethics Living Will was developed by Dr. Peter A. Singer. It is a guide to help you think about and express your wishes about life-sustaining treatment. The Living Will is not intended to be used in the absence of specific medical or legal advice. The Centre for Bioethics and Dr. Singer assume no liability for any reliance by any person on the information contained herein. The University of Toronto makes no representations regarding the technical quality, accuracy or lawfulness of the material presented herein. Many people have provided helpful comments about previous versions of this living will. Colleagues who reviewed this version and suggested improvements include: Ms. Iris Allen, Dr. Jaques Belik, Dr. Ed Etchells, Prof. Eike-Henner W. Kluge, Mr. James Lavery, Dr. Heather MacDonald, Prof. Eric Meslin, Mr. Jeffrey Schnoor, and Mr. Gilbert Sharpe. If you have any suggestions for improving this living will, please send them to Dr. Singer at the Centre for Bioethics (see back page for his address).

IS A LIVING WILL 'LEGAL' IN CANADA?

The provinces of Nova Scotia and Quebec have laws recognizing the use of proxy directives. In 1992, Manitoba and Ontario passed laws recognizing both proxy and instruction directives.

The Manitoba law came into force on July 26, 1993. In Manitoba, a living will is called a "Health Care Directive". People who are 16 years of age or older are presumed capable to make a health care directive. The person appointed to be the proxy must be at least 18 years old. To be valid, a health care directive must be in writing, signed by the person making it, and dated. The health care directive does not need to be witnessed if the person making it can sign for himself. The legislation does not require that a particular form be used.

The Ontario law is expected to come into force in 1994. In Ontario, a living will is called a "power of attorney for personal care." The person making the power of attorney for personal care, as well as the person appointed to be the proxy, must be at least 16 years old. The power of attorney for personal care must be witnessed by two people. The witnesses must have no reason to believe the person making it is incapable of giving a power of attorney for personal care. The following people cannot act as witnesses: the proxy; the spouse of the patient or proxy; a child of the patient; anyone who himself or herself has a legal guardian; and anyone who is less than 18 years old. The legislation does not require that a particular form be used.

It is reasonable to expect that other provinces will pass laws about living wills in the future. There are also court cases in Canada that would support the use of living wills. As well, the Canadian Medical Association has published a policy supporting the use of living wills.

You do not need a lawyer to complete your living will. However, some people might feel more comfortable if they review their living will with a lawyer. If there is some question about whether you are capable to make a living will, or if you anticipate conflict about who will make decisions for you or what decisions will be made, you probably should review your living will with a lawyer. A lawyer can also give you more specific and current information about the laws regarding living wills in your province.

WHAT IS A LIVING WILL?

A living will is a written document containing your wishes about life-sustaining treatment. You make a living will when you can understand treatment choices and appreciate their consequences (i.e., when you are "capable"). A living will only takes effect when you can no longer understand and appreciate treatment choices (i.e., when you are "incapable"). Various types of living wills are also called "advance directives", "health care directives", and "powers of attorney for personal care". There are two parts to a living will: an instruction directive and a proxy directive.

WHAT IS AN INSTRUCTION DIRECTIVE?

An instruction directive specifies what life sustaining treatments you would or would not want in various situations. Some common health situations and life-sustaining treatments are described in this pamphlet. Your doctors would determine whether you were in one of the situations described, and whether it was likely to be permanent, before following your instructions.

WHAT IS A PROXY DIRECTIVE?

A proxy directive specifies who you want to make treatment decisions on your behalf if you no longer can do so. The proxy should be someone you know and trust, like a spouse, partner, family member, or close friend. This person should be capable him/herself to make health care decisions and willing to be your proxy. Because the proxy is responsible for carrying out your wishes, it is important that you discuss your wishes with your proxy. Otherwise, it may be difficult for your proxy to guess what your wishes might be. You may name more than one person to act as your proxy, but you should state what will be done if they disagree with each other.

WHAT TYPE OF LIVING WILL SHOULD YOU COMPLETE?

Because instruction and proxy directives are complementary, if possible, your living will should contain both of these directives. However, if you do not have someone you trust to make treatment decisions on your behalf, then you may want to complete only the instruction directive. If you find that making treatment decisions for a possible future illness is too difficult, then you may want to complete only the proxy directive. In your living will, you may want to say whether you would want your doctors to follow the treatment decisions of your proxy or your wishes as expressed in the instruction directive if these two appear to be in conflict.

WHAT SHOULD YOU DO WITH YOUR LIVING WILL?

Since a living will speaks for you when you are no longer able to speak for yourself, other people must know that it exists. You should give copies of your living will to your proxy, doctor(s), lawyer, and family members. If you review your wishes with these people and give them the opportunity to discuss your living will with you, they will be more likely to understand and follow your wishes. The Centre for Bioethics Living Will is designed for easy photocopying onto legal size (8 1/2 x 14") paper.

WHEN SHOULD YOU UPDATE YOUR LIVING WILL?

You can change your mind about your treatment decisions or your proxy at any time. If you change your mind, you should change your living will. Review your living will at regular intervals, such as once a year, and when there are important changes in your life, for example: if your medical condition changes, if you are admitted to hospital, if you marry or divorce, or if your proxy dies. If you change your living will, destroy all copies of the old one, and replace them with copies of the new one.

WHO SHOULD COMPLETE A LIVING WILL?

People who want to maintain control over future life-sustaining treatments should consider making a living will. However, to make a living will, you must consider the prospect of your own sickness and death. Some people might find this distressing. Each person should decide for him/herself whether completing a living will is right for them. Remember, a person may choose to complete an instruction directive, a proxy directive, both, or perhaps neither.

HEALTH SITUATIONS:

In order to make an instruction directive, you need to imagine yourself becoming very ill or nearing death. It is not easy to imagine these situations or to decide upon treatments for them. To help you with this, we describe in detail some health situations in which a living will might be needed.

CURRENT HEALTH:

This describes the way your health is now.

PERMANENT COMA:

This means you would be permanently unconscious. Permanent coma is usually caused by decreased blood flow to the brain, for example, from the heart stopping. You would be unable to eat or drink and would need a feeding tube for nourishment. You would not have bowel or bladder control. You would need to be in bed and you would never regain consciousness. You could live at home with someone caring for you all day and night; otherwise you would probably need to be cared for in a chronic care hospital.

TERMINAL ILLNESS:

This means you would have an illness for which there is no known cure, such as some types of cancer. It is likely that you would die within six months even if you received treatment.

STROKE:

This means you would have damage to the brain causing permanent physical disability such as paralysis. You might also have trouble communicating because of impaired speech. These problems stay the same for the rest of your life. They do not get worse with time unless there is another injury to the brain, such as another stroke. Stroke can be described as:

Mild: You would have mild paralysis on one side of the body. You could walk with a cane or walker. You would be able to have meaningful conversations, but might have trouble finding words. You could carry out most routine daily activities, such as work and household duties, dressing, eating, bathing, and using the toilet. You would have bowel and bladder control. You could live at home with someone caring for you for a few-hours each day.

Moderate: You would have moderate paralysis on one side of the body. You would be unable to walk and would need a wheelchair. You could carry out conversations, but you might not always make sense. You would need help with routine daily activities. You may have bowel and bladder control. You could live at home with someone caring for you throughout the daytime; otherwise you would probably need to live in a nursing home.

Severe: You would have severe paralysis on one side of the body. You would be unable to walk, and would need to be in a chair or bed. You would not have meaningful conversations. You would be unable to carry out routine daily activities. You would need a feeding tube for nourishment. You would not have bowel or bladder control. You could live at home with someone caring for you all day and night; otherwise you would probably need to be cared for in a chronic care hospital.

DEMENTIA:

This means you would have a progressive and irreversible deterioration in brain function. You would be awake and aware but you would have trouble thinking clearly, recognizing people, and communicating. The most common cause of dementia is Alzheimer's disease. Dementia gradually gets worse over months or years. Dementia can be described as:

Mild: You could have meaningful conversations, but would be forgetful and have poor short term memory. You could carry out most routine daily activities, such as work and household duties, dressing, eating, bathing, and using the toilet. You would have bowel and bladder control. You could live at home with someone caring for you for a few hours each day.

Moderate: You would not always recognize family and friends. You could carry out conversations but you might not always make sense. You would need help with routine daily activities. You may have bowel and bladder control. You could live at home with someone caring for you throughout the daytime; otherwise you would probably need to live in a nursing home.

Severe: You would not recognize family and friends, and would be unable to have meaningful conversations. You would be unable to carry out routine daily activities. You would need a feeding tube for nourishment. You would not have bowel and bladder control. You could live at home with someone caring foryou all day and night; otherwise you would probably need to be cared for in a chronic care hospital.

LIFE-SUSTAINING TREATMENTS:

In each of the health situations described above, you might need one or more of the following life-sustaining treatments.

CARDIOPULMONARY RESUSCITATION (CPR) is used to try to restart the heart if it has stopped beating. CPR involves applying pressure and electrical shocks to the chest, assisted breathing with a respirator (breathing machine) through a tube inserted down the throat and into the lungs, and giving drugs through a needle into a vein. It is usually followed by unconsciousness and several days of treatment in an intensive care unit. Without CPR, immediate death is certain. On average when hospitalized patients are given CPR, it is successful at restarting the heart in about 41% of patients (41patients out of 100). However, about 14% (14 patients out of 100) will live to be discharged from hospital. Patients whose hearts are successfully restarted but who do not survive to hospital discharge spend several days in an intensive care unit before death. The chance that a person will live depends on the cause of the heart stopping and the senousness of the person's other illnesses.

RESPIRATOR (breathing machine) is used when a person cannot breathe; for example, because of emphysema or a serious pneumonia. A tube is put down the person's throat into the lungs. The respirator is needed as long as the person's lungs are not working. Without the respirator, a person with respiratory failure will probably die within minutes to hours. With the respirator, the chance that a person will live depends on the cause of the respiratory failure, and the seriousness of the person's other illnesses.

DIALYSIS (kidney machine) replaces the normal functions of the kidney. Dialysis removes excess potassium, water, and other waste products from the blood. Without dialysis, the potassium in the blood would build up and cause the heart to stop. Dialysis is needed as long as the person's kidneys are not working. Without dialysis, a person with kidney failure will die with in 7 to 14 days. With dialysis, the chance that a person will live depends on the cause of the kidney failure and the seriousness of the person's other illnesses.

LIFE-SAVING SURGERY may involve a wide range of procedures, for example, removal of an inflamed gall bladder or appendix. Without surgery, a person with a serious illness may die within hours to days. With surgery, the chance that a person will live depends on why the person needed surgery and the seriousness of the person's other injuries or illnesses.

BLOOD TRANSFUSION refers to blood given through a needle inserted in a person's vein. A person who is bleeding very heavily from a car accident, a stomach ulcer, or during major surgery, needs a blood transfusion. Without a blood transfusion, a person who is bleeding very heavily will probably die within hours. With a blood transfusion, the chance that a person will live depends on the seriousness of the person's other injuries or illnesses.

LIFE-SAVING ANTIBIOTICS refers to the drugs needed to treat life threatening infections; for example, pneumonia or meningitis. These drugs usually are given through a needle inserted in a person's vein. Without antibiotics, a person with a life threatening infection will likely die in hours to days. With antibiotics, the chance that a person will live depends on the seriousness of the infection and the seriousness of the person's other illnesses.

TUBE FEEDING involves putting a tube into a person's stomach (through the nose, or through a small hole in the abdomen). A person who cannot eat (e.g., someone in a coma) needs a feeding tube. Tube feeding is needed as long as the person cannot eat. Without tube feeding, a person who cannot eat or drink will die within days to weeks. With tube feeding, the chance that a person will live depends on the seriousness of the person's other injuries or illnesses.

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