Frequently asked questions about living wills

What is a Living Will?

While there is no special form of wording for a Living Will (sometimes called a Living Will Declaration), most such documents contain a simple expression of the individual's wish, usually addressed to the family physician and/or other family members, that if the individual should be suffering from a terminal condition, his or her life is not to be prolonged by artificial means.

What is a Medical Directive?

Also known as an Advance Health Care Directive, a Medical Directive is a more sophisticated document than a Living Will. It is not restricted to the case of a person who is suffering from a terminal condition. Rather, it will typically list a number of specific medical scenarios and, for each scenario, allow a person to specify which of several specific treatments (for example, intravenous feeding, cardio-pulminary resuscitation, organ or tissue transplant, etc.) are, or are not, to be applied. The document may also specify a surrogate to make decisions which are not covered by the document or where the individual is uncertain as to whether or not a particular treatment should be applied in any given scenario. If a surrogate is named, the document is a Power of Attorney for Personal Care.

Is a Living Will or Medical Directive legally binding?

Ontario's Health Care Consent Act requires a health practitioner who proposes to administer a particular treatment to a patient to have informed consent to that treatment, either from the patient or from a person who is legally authorized to consent on the patient's behalf. The Health Care Consent Act sets out a hierarchy of persons who may give or refuse consent for a proposed treatment where the patient is judged not competent to do so. Any person who is legally authorized to

give or refuse consent on a patient's behalf is bound to follow the known wishes (whether oral or written) of the patient, if those wishes were expressed while the patient was "capable" of deciding for himself or herself. If you have strong views concerning what treatments you would or would not like to have in a given situation, it is in your interests to ensure that anyone who may be asked to consent to treatment on your behalf is aware of your wishes.

What about emergency treatment?

In exceptional circumstances, a health practitioner can administer a treatment without consent. The health practitioner must be of the opinion that:

  • the person is incapable with respect to the treatment;

  • the person is experiencing severe suffering or is at risk of suffering serious bodily harm if the treatment is not administered promptly; and

  •  it is not reasonably possible to obtain consent or the delay would prolong the person's suffering or put him or her at risk of suffering serious bodily harm.

However, even in the situation described above, the health practitioner cannot administer emergency treatment if he or she has reasonable grounds to believe that the person, while capable and after attaining the age of 16, expressed a wish to refuse that treatment.

What about civil liability?

The health practitioner who abides by a consent or refusal for treatment is not liable, if he or she believes, on reasonable grounds and in good faith, that the consent or refusal was validly given. Similarly, a person who gives or refuses consent to treatment for another person, if acting in good faith and in accordance with the Health Care Consent Act, is not liable for giving or refusing consent.

Is the Living Will or Medical Directive something that should be prepared with my lawyer or my physician?

Each of these professionals may have a role to play. These documents should be discussed in detail with your physician who will be able to explain the terms used in the documents and answer your questions and concerns about various medical treatments. An open and serious discussion of such matters will help you and your physician to reach a clear understanding of what treatments you do or do not want to have administered to you if you are not competent to give consent in the future. This in turn will enable you to fashion a document that accurately and clearly expresses your wishes. Where you are appointing another person to give or refuse consent to treatment on your behalf, there are formal requirements for execution of the document. For that reason, you should consult with your lawyer.