A “living will” is an expression used to describe a document containing a person’s medical care wishes should they become unable to communicate them due to incapacity. A living will clause is often contained in a Power of Attorney for Personal Care (POA PC) as the attorney must have regard to treatment wishes they are aware of. A POA PC is not the same as a living will. Instead, it is a legal document in which one appoints one or more individuals to make personal care decisions for you, such as housing and health care, should you become incapacitated.
An example of a living will would be instructions about the administering of certain medications to alleviate suffering, should you request to be kept alive during a state of extreme mental or physical disability with no hope of recovery. A living will and POA PC are only used during life and cease to be effective on your death. By ensuring that you have this legal directive, it reduces the likelihood of a lengthy, painful, costly and emotional burden being experienced by your loved ones and you, the patient.
If there is no living will or a POA PC, someone else will have to make vital decisions when you are unable to make your own wishes known. Ultimately, the ability to make decisions on your behalf passes to a family member or relative, a close friend, the attending physician, or a court-appointed guardian. If there is no other suitable person available who is willing and able to make health care decisions, the Office of the Public Guardian and Trustee (OPGT) will act on your behalf.
As with a will or last testament, it is prudent to update your living will and POA PC. This is especially important in light of the constant changes in medical practice and science, and the unpredictability of an individual’s health.
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Andrea P. Kelly is a legal practitioner and notary public, called to the Ontario Bar in 2001, with practice focus in Estate Planning and Administration, including wills, estates, trusts and powers of attorney. She also practices Real Estate.
Prior to opening her law firm, she worked in various capacities including litigation support lawyer for the Ministry of Attorney General regarding complex commercial litigation, private practice in corporate/commercial law and numerous legal research and writing positions.