BC Court of Appeal Upholds “living will” Decision

I wrote about this sad case about a year ago, after the Supreme Court of BC denied the request of Mrs. Bentley’s family to have the care home where she lives stop feeding her and allow her to die.

This time, the BC Court of Appeal has ruled that the trial judge was correct in his finding that feeding by natural means (spoon feeding, as opposed to a feeding tube) is personal care, not health care, and personal care was not covered by Mrs. Bentley’s living will.  The trial judge had also said that the fact Mrs. Bentley took the food willingly showed that she “consented” to being fed.

The family has indicated that they are considering an appeal to the Supreme Court of Canada.  I’m not sure that the SCC would hear the appeal, because I don’t think their decision would be any different in these circumstances.

What is the take-away for all of us from this case?  In British Columbia, there really is no such thing as a legally binding “living will” which is what Mrs. Bentley thought she had.  You can give directions about your care, but it should be within one of the documents that has legal effect under BC law.  Those are Advance Directives and Representation Agreements.

Advance Directives are typically used in a hospital setting, but can be made by your lawyer as well.  In an Advance Directive, you can state that you consent to, or refuse to consent to, any health care.  There are a number of health care matters that cannot be dealt with under and Advance Directive, including abortion, electroconvulsive therapy, psychosurgery, or risky experimental procedures.

Note that the Bentley case hinged on the difference between health care and personal care.  It would appear that even if Mrs. Bentley had written an Advance Directive, the outcome in her case would have been the same.

The other option you have is a Representation Agreement.  The idea here is that you are appointing someone to be your representative in case you become incapable of giving or refusing consent.  Your Representative then has the ability to accept or refuse both health care and personal care.  There are many benefits to doing this, in that you can give your Representative as broad or as narrow a range of powers as you choose.  The only drawbacks are the cost and relative complexity (compared to printing off a living will from the internet and signing it).

Given the potential downside of not appointing a representative, though, the drawbacks would seem pretty minimal.  Just look at the expense and complexity, not to mention the heartbreak and stress, that Mrs. Bentley’s family has gone through, and continues to experience.

None of this is their fault, of course, and Mrs. Bentley thought she was doing what was necessary to ensure this exact thing would not happen.  I’m sure there are many others in the same situation.

The law evolves.  The best thing anyone can do for their family is to make their wishes known, and to actually put the proper tools in place.  That will ensure your family has the power to stop unwanted procedures, and that you are allowed to die with dignity when your time comes.

Talk to your family and then call your legal adviser to make sure you have the right documents in place.  And yes, you could do it yourself, but as the Bentley case demonstrates, that doesn’t always turn out so well.

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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