the real/estate blog


Preserving your biological legacy

Posted in Living Wills by Cesia Green on February 19, 2013

I have written before on whether a child can inherit from a parent who died before the child was conceived. That question is still very much alive in the U.S., and will likely enter Canada in the not-too-distant future. Today I want to talk about something else: preserving your biological legacy through injured children.

In October last year, Rufus McGill II crashed his car, killing one passenger and critically injuring himself. After the crash, his parents expressed a wish to harvest his sperm in order to have grandchildren. After lengthy discussions with the hospital, they were advised that they could not make that decision as their son was over 18 and had not left any instructions to that end. They had been preparing for a court application, but their son died before it could be commenced.

It is possible to direct what will happen with your body on incapacity. If you have particular wishes, you should make them known while you are capable.

You can read an article about the case here.

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Controlling your care

Posted in End of Life Care,Estate Planning,Living Wills,Powers of Attorney by Cesia Green on December 4, 2012

Late last year, the Globe and Mail ran a whole series of articles on death. They discussed many topics related to death and dying, generally and specifically within Canada. In this particular article, the question is on end-of-life care: what happens when someone is dying, and their final wishes are unknown?

I have written before on the importance of having a Power of Attorney for Personal Care in place, with a living will directive contained inside it. Making the decision and writing it down means that what you want to have happen will, and also means that no one else has to bear the burden of making it.

Young, no kids, no assets: why do I need a will?

Posted in Estate Planning,Life insurance,Living Wills,Powers of Attorney by Cesia Green on October 23, 2012
Tags: ,

Historically, I have generally been of the view that you start needing a will when you have assets or dependants. So here is the question: what, exactly, constitutes having assets?

Most of us think of assets as being a house, a car, maybe some investments. However, these days, our assets also include a lot that is digital. I’ve blogged about this many times before, but there are a number of considerations that go along with having digital assets that should make you want to have your will up-to-date.

I regularly read Scott Zucker’s blog. He had a very interesting article a little while ago which was, primarily, a transcript of an intake interview he did with a 20-something client. She rented, had no kids, and had no major physical assets, but as you can see from this article she definitely needed some estate planning.

Before you decide that you don’t need to do anything, you might want to dig a little deeper and be sure.

Donate your organs via Facebook

With all the hubbub about Facebook’s IPO last week, I thought I would write about something Facebook-related, namely donating your organs.

Seriously.

Facebook users in the US and UK can now use a new feature to sign up, via Facebook, with their local organ-donor registries. This will show on their timelines, and the idea is that peer pressure will have a positive effect on each donor’s friend lists, encouraging them to also sign up. While many people think of Facebook as a silly timewaster, this type of social media experiment shows the potential for a far-reaching, positive social network.

You can read a full article on this Facebook experiment over at PC World.

Protect your care

I recently returned from a much-needed vacation down south (which is also the reason this blog has been silent for a little while). On the plane ride home, I flipped through my movie options and came across The Descendants, which I was a little familiar with because of the recent Oscars. I was quite pleasantly surprised to discover that Hollywood had made a movie about what I practice, as large parts of the plot line concerned the Rule Against Perpetuities and advance directives. I’ll talk more about perpetuities later this week, but for today I thought I would discuss advance directives.

Many people will remember Terri Schiavo, who was the subject of a major legal battle in the United States a few years back. She collapsed in her home, suffered extreme brain damage, and was in a persistent vegetative state for 15 years until her death in 2005. For the last seven years of her life, her husband and parents fought a protracted legal battle over whether her feeding tube should be removed and she should be allowed to die, with her husband eventually being found to have the authority to end her life supportive treatments.

In The Descendants, Elizabeth King suffers a similarly traumatic injury, but she has signed an advance directive detailing her wishes in the event that she cannot survive without life support. This takes the decision away from her husband, who must simply allow her wishes to be carried out, and does not need to decide what she might have wanted.

In Ontario, the document used to direct your care is called a Power of Attorney for Personal Care. In creating such a document, you are given the ability to choose who is to make decisions and what decisions they are to make. In my opinion, this is one of the most important documents you can have in place. It allows you to be the person who decides what happens with your care and, perhaps even more importantly, who makes those decisions, so that what is done is what you would have done if you could have made the decision yourself. If you are over 16, you owe it to yourself to have a Power of Attorney in place.

Why plan when you’re going to live to 100?

Posted in Estate Planning,Living Wills,Powers of Attorney by Cesia Green on November 1, 2011

Over the summer, I discovered the blog of the brilliant Candice Aiston, a lawyer out of Portland, Oregon who works in the area of estate planning. My favourite post of hers so far, by far, is her essay on planning for the unexpected.

As Candice notes, asking whether you will live to be 100 is the wrong question. The right question is, what happens if I don’t? What happens if I’m one of the 120,000-odd people (in the US alone) who dies between the ages of 25 and 44? What happens if I’m in an accident, and I survive?

The impact of having a will in place and living to be 100 is excellent. The impact of not having a will in place and dying at 47, or of not having a power of attorney in place and being in an accident at 32, is incredibly far-reaching and potentially devastating, both for you and your family. Plan on living to 100 – but also plan on protecting yourself along the way.

[Link used with permission. Candice N. Aiston is an Estate Planning Attorney for families in the Portland, Oregon area.  She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance.  If you would like to receive her free report, “The 9 Common Planning Mistakes Parents Make,” please visit http://candiceaistonlaw.com/.]

How far would you go for a DNR?

Posted in End of Life Care,Estate Planning,Living Wills,Substitute Decisions by Cesia Green on September 13, 2011

I came across this article the other day, about a woman in Norfolk, England who had “Do Not Resuscitate” tattooed on her chest so that doctors would make no mistake about her intentions should she be found unconscious. And, just in case she is found face down, she tattooed “PTO” (please turn over) and an arrow on her back. She has said that, after her husband died, she became concerned that she might be left alive, on life support, and in pain, and wanted to ensure that this does not happen.

However, as the article notes, a tattoo is not enough to prove wishes to a doctor in case of an emergency. In Joy Tomkins’s case, she would need to either have a power of attorney in place, or have a DNR that is put in writing and properly witnessed. The rules are similar in Ontario. The best plan is to have a proper Power of Attorney for Personal Care in place to ensure that your wishes are spelled out, as well as being clear about the person you want making those wishes.

Court-ordered life?

Posted in Estate Planning,Living Wills,Substitute Decisions by Cesia Green on July 5, 2011

A few weeks ago, I blogged about Hassan Rasouli, a mechanical engineer in Toronto who fell into a coma after contracting bacterial meningitis during surgery to remove a brain tumour. His wife, Parichehr Salasel, ended up in a long dispute with his doctors, who wanted to remove him from life support. She believed that there was a hope of recovery, and insisted that he be kept on life support. The doctors went to court to get permission to unilaterally remove life support. They were unsuccessful at trial, and on Wednesday last week, the Ontario Court of Appeal sided with Parichehr .

The court determined that removal of life support constituted “treatment” under the Health Care Consent Act. It also determined that withdrawing life support was a necessary step in commencing palliative care, which the doctors had agreed required the consent of Hassan’s wife. Therefore, the court’s ultimate decision was that Parichehr’s consent was required to end Hassan’s life support, a decision that will likely have far-reaching effects in the medical community.

You can see the decision, Rasouli v. Sunnybrook Health Sciences Centre, here.

Court-ordered death

Posted in Estate Planning,Living Wills,Substitute Decisions by Cesia Green on June 14, 2011

In October 2010, Hassan Rasouli, a mechanical engineer living in Toronto, fell into a coma after contracting bacterial meningitis during surgery to remove a brain tumour. His doctors came to the conclusion that he was in a persistent vegetative state, and recommended ending ventilation and removing his feeding tube, which would almost certainly lead to his immediate death. His family disagreed, believing that there was a possibility that he could recover. Both parties refused to budge, leading to a court case that could drastically change the rules in Ontario regarding treatment of terminally ill patients.

The doctors at Sunnybrook Hospital argued that they should have the right to unilaterally decide whether life support measures are appropriate, and should be able to stop such measures if there is no chance of recovery. The family argued that, ultimately, this is the decision of the family member (or of the person him- or herself, if there is a Power of Attorney document that states what the person’s wishes are). As the law stands now, if doctors or family members are unhappy with the treatment options, they can go to the Consent and Capacity Board to appeal the decision. The doctors in this case are trying to bypass the CCB.

The case went to trial in April, where Justice Susan Himel ruled that removing a patient from life support is a treatment requiring consent under the Health Care Consent Act, which meant that the doctors were required to obtain consent from the patient or substitute decision maker. The doctors appealed, and the appeal was heard at the end of May. The Court of Appeal has not yet released their decision.

You can read the Superior Court decision here and an article about the case here.

Everything old should maybe not be new again

Posted in Celebrity Planning,Estate Planning,Living Wills,Substitute Decisions by Cesia Green on June 7, 2011

I read this article from the Daily Mail a little while ago, about Jeff Conaway, who played Kenickie in Grease. Jeff was found in his home in early May in a coma brought on by a suspected drug overdose. Doctors had informed his family that he had suffered brain death and would not recover, and they had planned to end life support until Jeff’s ex-girlfriend, Vikki Lizzi, came forward to announce that she held a power of attorney over Jeff and ordered the life support to be maintained. Doctors are currently on hold until it is established whether the power of attorney is still valid.

I regularly advise people to have powers of attorney prepared so that their health care can be arranged if they are unable to do so for themselves. This case makes it very clear just how important it is to keep these documents current, and to make new ones as your life situation changes. Maybe Jeff Conaway wanted his ex-girlfriend to make these decisions, as an outsider who could be more objective; maybe he simply forgot to update the document. We will likely never know. For the rest of us, we should always make sure that the person named in our power of attorney document is the person we want acting right now, and should always change it in the future when it is appropriate.