PAPCs

The Terry Shiavo case in the United States has everyone running out and preparing living wills, according to US news sources. In case you have not been watching the news, Terry Shiavo is a woman who is allegedly in a persistent vegetative state and was required to have a feeding tube. Over the past decade a legal battle has ensued between Terry's parents and her husband, Michael. Michael believes that it was Terry's wishes that she not be kept alive by extraordinary measures including a feeding tube. Terry's parents believe the opposite. Terry did not have a living will or any other written document setting out her wishes. She had apparently told her husband and other people close to her that she did not want to be kept alive artificially. By order of a state court last week, Terry's feeding tube was removed. Terry's parents want the tube reinserted and have been making emergency appeals to various appeal courts but have not as yet been successful.

The Shiavo case points out the difficulties that can arise in the absence of clear written instructions regarding medical treatment or lack thereof. How can one avoid such unfortunate battles such as the one in the Shiavo case?

One way to avoid disputes as to what a person may or may not want in the way of medical treatment when incapacitated is to make a Power of Attorney for Personal Care ("PAPC"). Through a PAPC, a person called the "grantor" names another person or persons called "attorney(s)" who will make personal care decisions during the grantor's incapacity. At the time a grantor creates a PAPC, he or she must be mentally capable of doing so. A person cannot create a PAPC after becoming incapable.

A person is considered by law as being incapable of personal care if he or she is unable to understand information that is relevant to his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

A PAPC in Ontario is a pre-printed form that is filled out usually by a lawyer, upon instructions of the grantor. On this form, the grantor names the attorney(s) and has the opportunity to set out specific conditions. Some people believe that it is sufficient to name an attorney but not provide any detailed instructions regarding medical treatment. The named attorney then would be legally required to make decisions regarding the grantor's personal care in the best interests of the grantor. Another theory is to set out on the PAPC the specific types of medical treatment that are to be withheld. Some examples of specified treatments to be withheld can include electrical or mechanical resuscitation of the heart, nutritional feedings; artificial mechanical respiration where the brain can no longer sustain breathing and radiation, chemotherapy and similar forms of treatment, to name a few.

Another option is to draft a living will, which is not a form but rather is a personal expression of one's intentions in the event of incapacity. The Substitute Decisions Act states that an attorney must have regard to such documents when making decisions.

If you would like more information on making a Power of Attorney for Personal Care, please contact me at my office.