Including Living Wills in POAs
Published on 29 August 2022, 07:22:56 AM
Advance Directives (Living Wills)
When you want to make your own care decisions if you become mentally incapable, make an advance directive (sometimes called a living will).
Advance directives instruct your power of attorney about future medical treatments you want if you become incapable of directing your care. They take effect if you are ill, injured or elderly and deemed mentally incapable by health care professionals or an Ontario Public Guardian and Trustee capacity assessor.
Anyone over 16 who is mentally capable can make an advance directive. Axess Law’s Ontario Wills and estate lawyers can include advance directives in your power of attorney for personal care (POA). You can have living will and power of attorney documents drafted at the same time as personal Wills or on their own.
Living Will vs Power of Attorney
What is an advance directive or living will and power of attorney?
Advance directives direct your POA for personal care to make substitute care decisions when you are unable to. A living will is not a personal Will, but it can protect your POA or loved ones from making difficult decisions for you.
By naming someone to act for you, your POA empowers your representative to make decisions about everything from your health care and diet to housing, clothing, hygiene and safety. An advance directive does not appoint anyone to act on your behalf. While Axess Law will incorporate your wishes within your POA for personal property, advance directives include only your health care wishes. For that reason, they are made while you are mentally competent.
What Does Mentally Capable Mean?
Being mentally capable means you:
- understand the need to choose someone with genuine concern for your welfare
- know that person may need to make personal care decisions for you.
Adults with developmental disabilities who understand what an advance directive is and its consequences can make advance directives.
Drafting a Living Will in Ontario
When Axess Law’s Wills attorneys draft advance directives, we include care decisions about what types of treatment you desire. Your living will protects you if you have no chance of recovery or suffer a life-threatening event, like a heart attack or stroke, while you are no longer mentally capable.
Advance directives can provide instructions on:
- whether you want pain-relieving medications or antibiotics
- when or if to use respirators, ventilators or CPR
- if you want artificial feeding or hydration
- if you prefer to be cared for and die at home or in a hospice
- and more.
We write an advance directive for you or you can make notes on what to include and bring it with you when you visit any of our Greater Toronto Area law offices. We can video conference with you online from anywhere in Ontario. The final advance directive is incorporated within your POA for personal care, which we give or email to you.
Why You Need a Lawyer
Axess Law’s Ontario Wills lawyers understand the ins and outs of making a legally binding advance directive. It’s affordable and we make it easy for you. Our lawyers complete the living will and power of attorney forms and get your signature to make it legal. We answer any
questions you have and can advise you on other estate planning documents.
POAs for personal care cost only $69.99 ($99.99 if you also want a POA for property). We include your advance directive in your POA at no extra charge.
Changing Advance Directives
You can cancel or change an advance directive at any time while you are mentally capable. Updating your living will regularly is a good idea. Axess Law revises your directive at your request and ensures your POA is updated to reflect changes.
Overturning Advance Directives
Axess Law Wills and POA lawyers encourage your questions about can a power of attorney override a living will. Naturally, you’re concerned.
While POAs have substitute decision making powers for you, overturning decisions made while you were mentally capable is another matter. That includes DNRs (do not resuscitate orders) or ongoing medical treatment you may not want if you are terminally ill.
Fortunately, Ontario law states that, unless they are impossible to follow, express wishes for future care are legally binding. That means some wishes may not be upheld exactly as you planned, if that’s not possible, but your wishes will be respected.
That’s not to say advance directives can’t be overturned in court (see What to Do if a Family Member is Coerced) or physicians may not be concerned if your family objects. Including an advance directive in a POA gives you an advocate to speak on your behalf and consent to medical treatments.
What to Do if a Family Member is Coerced
Ontario courts are reluctant to overturn future care wishes unless a POA was made under suspicious circumstances. Provided your family member was mentally capable of entering into a contract or giving or refusing consent at the time, their advance directive is legally valid. Axess Law takes steps to prevent coercion or undue influence by ensuring POA makers give informed consent when signing legal contracts.
Making MAID Decisions
Lately, government has been questioning if some people are choosing medical assistance in dying (MAID) because they are poor, depressed or marginalized by race or gender. How do your choices affect you and your family?
Advance directives exclude MAID decisions because a POA or even family or friends cannot advise anyone to end your life. You must be mentally capable when you request MAID and it must be your decision.
Donate Organs in Advance Directives
Did you know that even if you want to donate organs when you die, physicians give families the final say? Educating your family about why you are donating organs or tissue can help prevent your wishes from being neglected.
FYI, signing organ donation cards on driver licenses does not guarantee your intentions will be heard. Provided you are 16 or over, Axess Law can include organ donation instructions in living will and power of attorney forms.
We suggest you also register organ donations online at Ontario Ministry of Health and Long-Term Care, health.gov.on.ca. Or download the website Gift of Life consent form and mail or deliver it to ServiceOntario.
Making Living Will Appointments
Axess Law’s virtual Wills lawyers make video calls online anywhere in Ontario. You can meet with our Wills and estates lawyers in person at any of our Greater Toronto Area law offices to draft your advance directive and POA. Use our online booking form to make an appointment or call our 1-647-479-0118 lawyer line to make an appointment.
