A living will is not as well-known or popular as a regular will. While half of Canadians have a will, less than 20% of them have a living will. Yet, in many ways, making a living will can be more beneficial for you than a will, as your living will benefits you and your family while you’re alive, while your will benefits your heirs. Let’s take a look at how to make a living will and what it involves.
So, what is a living will, exactly?
Just to make things a little confusing, a living will has several different legal names, depending on where you live in Canada. A living will could be called a:
- Continuing or enduring power of attorney for personal care
- Representation agreement
- Personal directive
- Health care directive
- Advance health care directive
- Advance medical directive and/or protection mandate
What is a living will’s purpose?
Sadly, there are many situations or health issues that could make you incapable of making your own decisions regarding your health care and treatment, including:
- A head injury
- Dementia or Alzheimer’s
- A stroke
- A brain tumour
- A coma
- Severe depression
Many of these situations could come about at any stage in life, which is why making a living will is so important.
The purpose of a living will is to allow you to effectively pass on the responsibility for making your health care and treatment decisions to someone you trust, if you’re ever unable to make them for yourself. It also allows you to specify the kind of treatment and health care that you’ll want (and not want) further down the line.
If you don’t make a living will and become unable to make your own decisions, a temporary substitute decision maker could be appointed to make decisions for you.
What to include in a living will
When you first start looking at how to make a living will, you should start by choosing the person who will make personal and health care decisions on your behalf. Depending on where you live, this person could be called your representative, agent, attorney, proxy, substitute decision-maker or delegate (in this article, we’ll refer to them as your representative). This is a really important decision — your representative could be making crucial decisions on your behalf.
Before making your choice, there are a few essential questions to ask about your potential representative:
- Are they old enough? In some provinces, they must be at least 19 to be your representative.
- Do they live close by? They may need to get to a hospital or other health care facility quickly, or be able to communicate with health care workers quickly. Someone who lives in New Zealand would not be an ideal choice.
- Can you trust them? Do you share the same opinions and values? Will they agree to carry out your wishes, even if they may not agree with all of them?
- Is this something they’re willing to do? This is a big ask, so both you and they should feel very comfortable with them taking this on.
- Are they capable? Will they be able to make crucial decisions, potentially in a stressful situation? Are they forceful enough to ensure that you receive the best treatment possible?
- Do they work for you? Employees, apart from family members, cannot usually be your representative. Neither can care workers.
You should also consider how much you’ll allow them to make decisions on your behalf. You could allow them full reign over your health care decisions, or limit what they can and can’t decide for you.
You should then consider the kind of health care and treatment that you would want to receive, depending on the situation. It may make you uncomfortable to think over such unpleasant situations, but it’s important that your representative understands how you feel about potential treatment options.
For example, these could include any form of surgery, experimental treatment, life-prolonging treatment (such as ventilation support, dialysis, CPR and a feeding tube), or a blood transfusion. Would you want your life to be prolonged indefinitely, even if you’re in a permanent vegetative state?
If you want to donate your organs and/or living tissue, you can mention this in your living will, but check with your province or territory about how to register your consent.
What is a living will’s legal status?
Many people wonder, is a living will binding in Canada?
Every province and territory has its own rules for what may constitute a valid living will (apart from Nunavut, which doesn’t have any legislation for living wills). Typically, your living will must include these details:
- Your name and address
- The name of your representative
- Your instructions/wishes
- The date it should become effective
- Your signature
- The date you signed it
In most provinces and territories, the document needs to be signed and dated by you, and witnessed by two adults, who should both sign in each other’s and your presence. Witnesses cannot be your representative or their spouse, nor can they be your spouse or child. Your representative may also need to sign an acknowledgement, agreeing to act on your behalf.
If you’ve correctly drawn up your living will in accordance with local rules, your representative’s appointment will be valid. However, depending on your province or territory, some of your wishes may not be allowed. For example, in Quebec you cannot request medical assistance in dying in your advance medical directive.
You should keep a copy of your living will in a safe place and give a copy to your representative, and a copy to your health care provider (you may need to ask your lawyer or notary to provide legal copies of your living will).
How to make a living will
Once you’ve chosen your representative and decided on what to include in your living will, you need to get it all down on paper, sign it and have your witnesses (and possibly your representative) sign it.
As mentioned, each province treats living wills slightly differently. Below are links to government pages or other trustworthy sources that include instructions and templates for making living wills in each province and territory:
Alberta: a personal directive
British Columbia: a representation agreement
Manitoba: a health care directive
New Brunswick: an enduring power of attorney for personal care
Nova Scotia: a personal directive
Ontario: a continuing power of attorney for personal care
Quebec: a protection mandate
Saskatchewan: a health care directive
Prince Edward Island: a health care directive
Newfoundland and Labrador: an advance health care directive
Northwest Territories: a personal directive
Nunavut: this territory does not have legislation for living wills; find out more here
Yukon: an advance directive
What is a living will’s place in estate planning?
A living will is a crucial component of a complete estate plan. Other components include a comprehensive will, a power of attorney for property and life insurance.
An IG Advisor, along with IG’s team of tax and estate experts, can help you to put together a complete estate plan; this can include helping you to consider what to put in your living will. Talk to your IG Advisor today to set up an estate planning meeting. If you don’t have an IG Advisor, you can find one here.
Written and published by IG Wealth Management as a general source of information only. Not intended as a solicitation to buy or sell specific investments, or to provide tax, legal or investment advice. Seek advice on your specific circumstances from an IG Wealth Management Consultant.