Does your Living Will actually work?

As the recent BCSC decision in the Margot Bentley case demonstrates (Bentley v. Maplewood Seniors Care Society 2014 BCSC 165 many Living Wills or Representation Agreements currently in place in British Columbia probably do not do everything people expect them to do. In fact, the case casts doubt on whether it is even possible to give specific care directions that will be honoured in every circumstance.

For those unaware of this case, Mrs. Bentley, who during her working life was a nurse, and understood what advanced Alzheimer’s disease looks like, wanted to ensure that if she ever reached that point she would not be kept alive. She wrote a “Statement of Wishes”, which directed that no artificial means be taken to prolong her life. She went so far as to add a wish that she be euthanized.

After she herself was diagnosed with Alzheimer’s, a second “living will” was found. It is not clear whether that second document was actually signed by Mrs. Bentley or if it was a forgery (as was alleged). However, this second document contained a statement that she would accept “basic care” but no “artificial means” or tube feeding. It appears to be the standard boiler-plate “living will” that has been circulating via the internet and elsewhere for a long time, and is often signed without much (if any) discussion between the individual and their legal adviser.

In the meantime, Mrs. Bentley is at stage 7 Alzheimer’s, and is being spoon fed.  She usually, though not always, accepts food when a spoon is placed next to her mouth.  Her family want that stopped, saying it is merely a reflex;  the health care providers refuse to do so.

In court, arguments were made that the Statement of Wishes should qualify as a Representation Agreement, appointing two people as alternate decision makers. The court refused to agree, saying that the Statement of Wishes only mentioned medical care, which the judge distinguished from matters of personal care such as feeding.

To summarize, the judge found:
1. That “Mrs. Bentley is currently capable of making the decision to accept oral nutrition and hydration” and that she “is providing her consent through her behavior when she accepts nourishment and liquids”; this in spite of her very obvious incapacity in all other things.
2. Providing food or water by glass or spoon (as opposed to by tube) is a form of personal care, not health care;
3. The wording of both documents signed by Mrs. Bentley failed to constitute valid representation agreements or advance directives, so there was no validly appointed alternate decision maker for her, or at least not for matters of personal care;
4. Even if Mrs. Bentley was incapable of consenting to oral nutrition and hydration, the legislature did not intend (her Statement of Wishes or her Living Will) to give anyone the right to refuse, on her behalf, basic personal care necessary to preserve life.

The judge also found that anyone who withdraws or withholds food and/or water from an adult who is not capable of making that decision would face potential criminal liability.

At Boughton, we feel the best way to deal with these issues is to ensure that you have a properly appointed alternate decision maker in place. In BC this can be done by a Representation Agreement. We also urge clients to make their health care and personal care wishes known to the representative through clearly worded written statements as well as frank discussions about the issues.

We strongly urge you to review your previous Statements of Wishes, Living Wills, Representation Agreements or Advance Care Directives to determine whether they actually allow your wishes to be carried out in light of the Bentley decision. If you are not sure, please contact us.

About Maria Holman

I am a lawyer with over 28 years of experience in drawing up wills, trusts and estate plans, helping clients with probate and estate administrations and advising business owners and families about planning for the future. You can find me at Webster Hudson & Coombe LLP in Vancouver, BC
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