Skip to main content
tax matters

Getty Images/iStockphoto

Some people leave this earth with a sense of humour. I think of Canadian lawyer and successful businessman Charles Vance Miller, who died in 1926 and held a contest in his last will and testament where a portion of his estate would be left to the Toronto woman who, in the 10 years following his death, gave birth to the most children. It became known as the "Great Stork Derby." Turns out that four women shared the bequest (each receiving the equivalent in today's dollars of $2.1-million), each giving birth to nine children in 10 years.

While dying with humour is not often talked about, the more serious and controversial issue of "dying with dignity" has been hot in the press. The whole issue of medically assisted death is one that many would like to ignore. The fact is, however, the issue should work its way into your estate planning, particularly in the event you can't make decisions on your own. It brings to mind the story of a family and a court decision from just four years ago.

The story

Mrs. F was a widow who gradually developed dementia. She was visiting Florida in 2012 when she apparently inhaled some food that required emergency help. By the time help arrived, she had experienced brain anoxia and didn't recover significant consciousness. A feeding tube was inserted at the hospital in Florida before she was transferred back to Toronto to a hospital there.

Soon after she arrived in Toronto, her family produced a power of attorney for personal care prepared 10 years earlier, which included the following wording: "I hereby instruct that if there is no reasonable expectation of my recovery from physical or mental disability, I be allowed to die and not be kept alive by artificial or heroic measures. I do, however, instruct that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life." It went on to read: "I authorize and direct my attorneys for personal care to make on my behalf all decisions with respect to my personal care if I am mentally incapable of making such decisions myself." Her attorneys for personal care were her three children.

Given the wording of the power of attorney, Mrs. F's doctor, on behalf of the hospital, requested that they allow her to die. The matter was taken to the Consent and Capacity Board (CCB), an independent body in Ontario created under the Health Care Consent Act. On June 14, 2012, the CCB supported the doctor's request to end Mrs. F's life because they took her words in the power of attorney for personal care to be directive, and not just precatory. But her children wanted differently and took the matter to court. (As an aside, I have a problem with others even trying to force a decision like this without simply acquiescing to the wishes of the substitute decision makers – the children who held power of attorney in this case – but I digress.)

The decision

On April 3, 2013, the Ontario Superior Court sided with the children. Witnesses came forward, including rabbis, attesting to Mrs. F's Orthodox Jewish faith and life practices. Removing the feeding tube would have been contrary to the tenets of Judaism that they believe would have been important to her and which she embodied in all aspects of her life.

After examining all the evidence, the court found that Mrs. F likely did not understand or appreciate the words "artificial and heroic measures" in her power of attorney for personal care. She likely did not understand all the implications of what she signed. Her life-long faith was accepted as an important factor that was not sufficiently taken into account by the CCB. There was no evidence that she requested an end-of-life clause (her lawyer had no notes of specific discussions and simply discussed general issues related to powers of attorney).

The learning

What can we learn from Mrs. F's story? First, you should have a power of attorney for personal care, personal directive, advance health-care directive, representation agreement or mandate (the type of document depends on your province). Next, boiler-plate language won't cut it (my own power of attorney for personal care has language identical to that of Mrs. F); imprecise wording such as "heroic and artificial measures" should be removed or defined. Finally, consider simply naming your attorney(s) and give them broad powers to make decisions, then create a non-binding side document to express your wishes for your attorney(s) to take into account.

Tim Cestnick, FCPA, FCA, CPA(IL), CFP, TEP, is an author and founder of WaterStreet Family Offices.