STEP – Key estate planning considerations for Canadian practitioners regarding physician-assisted death

STEP article, enjoy!

N8XGUJR3M7“Sarah Dykema TEP, of McInnes Cooper, highlights that estate planning in the context of physician-assisted death, despite being riddled with uncertainty, “should not – and cannot – wait for complete legal certainty.” She offers some considerations for Canadian private client practitioners who are faced with clients who elect medically-assisted death.


Legalization of physician assisted death


On February 6, 2015, the Supreme Court of Canada ruled unanimously (9-0), in Carter v Canada ((Attorney General) 2015 SCC 5), that the prohibition of physician-assisted suicide is unconstitutional. The Supreme Court struck down s.241(b) of the Criminal Code and found that doctors should be able to assist “death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition”. The judgment gave federal and provincial governments 12 months to implement legislation on assisted suicide.


On December 22, 2015, the Court of Appeals of Québec decided in Québec (Attorney General) v D’Amico, that the province has the right to allow terminally ill patients to seek the help of a physician to end their life.


On June 17, 2016, after some delay, Bill C-14 (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)), received Royal Assent.


Physician-assisted death was thus legalized in Canada. However, practitioners had, and still have, little clarity as to what this development means for the estate plans of those who opt for medically-assisted death.


Estate-planning considerations


In 2015, just after the publication of the Carter decision, Ian Hull TEP of Hull & Hull LLP said that the changes in the law posed “novel considerations for estate practitioners or those persons undertaking end-of-life planning”. For example, he said, powers of attorney for personal care “may need to include, or be updated to include, a provision relating to assisted suicide.”


Sarah Dykema TEP now offers further considerations to help estate planning in these circumstances. First of all, estate plans should be reviewed regularly to ensure they evolve with the law, which is likely to change rapidly and be challenged in the courts.


Secondly, the law, she says, doesn’t allow for medically assisted death authorized by an advance directive. However, if a person were to make an advance directive, hospitals, and the courts, would usually honor those wishes – irrespective of what is in that person’s best interests.


What about life insurance policies?


In 2015, Ian Hull stated that the outcome of the Carter case would also affect life insurance policies: most include a contestability clause that means insurance proceeds will not be paid out if the policy holder commits suicide within two years; “[T]hus, an insurer may be entitled to withhold the proceeds of a policy in the case of assisted suicide”. Dykema further suggests that those contemplating medically assisted death, or attempting to do so in an advance directive, should confer directly with their insurer first. Whether or not an insurance company will pay out under a life insurance policy will depend on the policy wording, she explains.”