Expect the unexpected
Estate planning is not just about how and to whom you will bequeath your property and who will administer your estate. Will planning also means preparing for what will happen to your property if you become incapacitated.
Who will be able to consent to or refuse the health care you require if you are unable to express your wishes?
Can you decide in advance what will happen to you, even if you are no longer able to verbalize or write down your choices?
An extraordinary year
The current context of the pandemic is a good time to give more thought to questions relating to your estate plan and the type of care you want or do not want to receive.
Because of its virulence, COVID-19 can lead to hospitalization and, in some cases, patients must be intubated and put on a ventilator to help them breathe. This pandemic situation underscores the importance of specifying and making known your wishes regarding a potential hospitalization, intubation and artificial ventilation, but also for everything concerning your health care in general.
Understanding AMDs
Since December 10, 2015, it has been possible to sign advance medical directives (AMDs). This document allows any capable person of adult age to formulate in advance their wishes regarding their end-of-life treatment, in anticipation of their inability to consent to care covered by the Act respecting end-of-life care (the Act).1
The document therefore speaks for you to health care workers to inform them of the care that should be administered to you, if you are unable to express your wishes directly. These AMDs are binding. Caregivers must follow them, without the intervention of a member of your family. AMDs spare your loved ones from having to make this decision for you.
Scope of AMDs
You should know that advance medical directives only cover five types of care and that they are only applicable if you find yourself in one of the three clinical situations covered by the Act.
Five types of care covered by the Act
- Cardiopulmonary resuscitation
- Ventilator-assisted breathing
- Dialysis
- Forced feeding and hydration
- Artificial feeding and hydration
Three clinical situations covered by the Act
- End-of-life situation: serious and incurable medical condition.
- Severely and irreversibly compromised cognitive functions: e.g. comatose state deemed irreversible.
- Other situation of severely and irreversibly compromised cognitive functions: e.g. Alzheimer’s or advanced dementia.
Note that you cannot request medically assisted death via AMDs. Medically assisted death cannot be requested in advance and you must be capable when you request it.
Plan intelligently
AMDs can be signed before a notary or before two witnesses using a form from the Régie de l’assurance maladie du Québec (RAMQ). These directives can then be registered with the RAMQ in a register designed specifically for this type of document or be kept in your medical file by giving them to your doctor. Know that AMDs can be revoked at any time, as long as you are capable.
Follow the rules!
If you wish to amend your AMDs, you must sign new ones which will revoke the previous ones. You cannot simply amend them as you could for a will by signing a codicil or an amendment document: you have to redo the entire document.
The latest AMDs always take precedence. The document containing your AMDs is a complementary document to your will and your protection mandate in case of incapacity.
The living will
In the protection mandate, there may be clauses concerning your end-of-life treatment, commonly called a “living will.” Keep in mind that AMDs do not cover as many medical situations or care choices as a protection mandate. The protection mandate can cover a wider range of clinical and care situations, so it remains a useful document, even if you have signed advance medical directives.
Who consents to care?
In the absence of AMDs and for care not covered by them, consent to care will be given by the mandatary to the person (named in your protection mandate) or by the tutor or the private curator (when protective supervision is instituted in the absence of a protection mandate). If you do not have a legal representative, consent to care will be given by your spouse (married or de facto spouse), by a close relative or by a person who shows an interest in you.
But don’t worry, if you’re still able to consent to your health care, you’ll be able to express your wishes yourself verbally.
The logical conclusion…
Don’t wait to plan for situations that may arise and whose consequences may be significant for you and your loved ones. It’s not a question here of pessimism or negativity, but rather of ensuring a quality of life that meets your expectations.
By understanding the scope of the different tools available to you, you’ll be able to make the best decisions. If you have any questions, don’t hesitate to ask us: we want to help you plan each stage of your life, so that they give you all the satisfaction you hope for.
Christelle Malenfant, LL. B., D.D.N., TEP
Notary, Wealth Management
1 Act respecting end-of-life care, CQLR chap. S-32.0001
The information contained herein has been obtained from sources deemed reliable, but we do not guarantee the accuracy of this information, and it may be incomplete. The opinions expressed are based upon our analysis and interpretation of this information and are not to be construed as a recommendation. For any questions, don’t hesitate to contact your wealth management advisor or your tax specialist, accountant or legal advisor.
