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Thursday, November 12, 2015

Express wish in health care directive override "best interests"

Not long ago, I heard about a case from Nova Scotia that should be of interest to anyone who has made a Health Care Directive, or is thinking of making one. I'm often asked by doubtful clients whether "anyone really pays attention" to what is said in these documents, and this case helps answer that.

A woman in Nova Scotia, identified only by her initials, JML, made a Personal Directive in 2012, appointing her son, BM, as her agent. Her document included a clause that said it was her wish that:

"my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged, including the assistance of a full-time caregiver to allow me to remain in my house, no matter what my physical or mental condition might be".

Eventually JML was diagnosed with dementia and with the help of her doctor, her Personal Directive was brought into effect. Her agent, BM, thought that the best thing for her was to be moved to a care facility, despite her wish that she stay at home. This decision was opposed by the alternate agent named in the document. 

There was a great deal of discussion about whether the "wish" stated would be as binding on the agents as an "instruction". The judge said that the law wasn't clear about the difference between a wish and an instruction in a Personal Directive, but that either way, JML had made it clear what she wanted. 

There was also discussion about how the best interests of the person might not be the same as the express wishes of the person. The court said the agents must follow her wish to stay at home as long as she was able to afford it. If you'd like to read the case itself, click here

This case makes a couple of important points. One is that you should make sure that your lawyer tailors your health care document to your specific situation. Add things that are important to you, such as JML's wish to stay at home as long as possible so that you have the peace of mind of knowing your wishes will be communicated to your caregivers. Secondly, talk to the person you name as your agent to ensure that he or she is onside with your wishes.

Don't forget to have this important document prepared at the same time as your will.

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