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Friday, March 6, 2015

Margot Bentley case highlights irrelevance of living wills in BC

Margot Bentley, who has advanced Alzheimer's disease, is spoon-fed each day at a B.C. residential care home. (CBC)

CBC News in British Columbia is carrying a story about Margot Bentley. Mrs. Bentley is at the centre of a court case that will hit home for a lot of people. Apparently in 1991 she wrote a document that is referred to as a "Living Will", saying that she did not want nourishment or hydration if she was suffering from an extreme disability. Her family is fighting in court for the right to let Mrs. Bentley die according to the wishes expressed in her document, but the court has disagreed with them. The court says that the long term care facility in which Mrs. Bentley lives has the right to keep spoon-feeding Mrs. Bentley.

Click here to read the CBC story, which carries more detail about the family and its struggles with this issue.

The story caught my eye because of its title, which says that the Bentley case "highlights the irrelevance of living wills". For me, the Bentley case highlights a different issue. It highlights how people hear things or see things that they take as being real, and legal, and binding, when they are none of those things. There are no living wills in Canada; that is an American invention. You may have written one and signed it and tucked it away carefully in your safe deposit box, but it's not a valid, legal document and won't help your family in any way.

The CBC story doesn't actually seem to understand that fact. However, the article is absolutely correct when it says that in BC there is another way to deal with end-of-life instructions. In fact, every province and territory in Canada has another way. They are called different things across the country, including Health Care Directive, Power of Attorney for Personal Care, Personal Directive, or Health Care Proxy.

The fact that living wills are not valid, and these documents ARE valid is not just a matter of semantics. You couldn't take a living will and simply call it something else because it still wouldn't be valid. The difference is not in the title, but is in the contents of the document.

The main difference between living wills and the health care directive documents I've mentioned here is that in these documents, the donor (or maker) of the directive chooses someone and names them as a health care agent. It authorizes that named person to step in and make decisions. This is an essential difference. A living will doesn't appoint anyone; it's just a general description of what the donor wants. It doesn't bind anyone. In the health care directive, the donor goes on to clarify his or her wishes in terms of what he or she wants to happen - or not happen - if an end-of-life decision needs to be made.

Often the appointment of a decision-maker is crucial because it provides a contact person for doctors and health care providers in cases where family members have conflicting wishes and all are trying to exert their wishes on the doctors. It can short-circuit a lot of potential disputes. If there is a court case of some kind, as long as it involves personal and not financial matters, the decision-maker has the legal authority to represent the donor.

Naming a specific person also imposes accountability on that person, and provides him or her with guidance on  how to deal with many of the decisions they may face.

There is much  more to a health care directive than end-of-life decisions, too. It also addresses medical and personal questions that may arise long before it's necessary to talk about end-of-life instructions. It specifically allows the health care agent to have access to health records, and to make decisions regarding where the donor lives, what level of care is required and how (and by whom) it is to be provided.

The CBC article is BC-specific, and talks about the availability of Representation Agreements. BC readers can find out more about these agreements by clicking here.

The attached photo of Margot Bentley accompanied the CBC News article and is credited to CBC.

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