Legal Ease: Advance directives ensure quality of life

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We have all been told repeatedly how important it is to have a mandate in the event of our incapacity. In this document we tell the world whom we want to manage our money and other assets and whom we want to care for us when we can no longer do it ourselves.

We can choose the same person, or persons, for financial and personal matters or a different person, or persons, for each. These persons become our mandataries and will be called up to make decisions for us when we can no longer decide for ourselves.

In the mandate we can give specific instructions as to how we want our money and assets managed. The mandate can also give instructions about our health care. Under the Quebec Civil Code, no one can be made to undergo care or treatment of any nature without consent.

The problem is what happens when we become incapable of providing that consent?

The Mandate in the Event of Incapacity enables us to leave instructions on our health care should this occur. Incapacity is defined as any deficiency, whether mental, emotional or physical, which alters a person’s mental faculties and renders him unable to make his will known.

The appropriate professionals assess whether or not the patient understands his diagnosis, the nature of his treatment, the risks and benefits of treatments, or available alternatives. Based on these assessments, the mandatary asks the court to review and approve the mandate. Once approved, the instructions contained therein must be followed.

These mandates give the mandatary the authority to consent to any care or medical treatment required, to consult the medical file, to arrange for placement if necessary, and to pay for whatever extras would be of benefit to the mandator and enhance his quality of life.

The mandate is a formal legal document and will only take effect once it has been established to the satisfaction of a judge that it has been drafted according to legal requirements and that the mandator has been judged by professionals to be incapable of providing consent.

In December 2015, new legislation took effect in Quebec regarding end-of-life care. This is the law that renders medical aid in dying possible. It also provides for Advance Medical Directives and creates an Advance Medical Directives Register.

Quebec’s Act Respecting End of Life Care states that a person of the age of majority, capable of giving consent may, by means of advance medical directives, specifiy whether or not he consents to care that may be required by his state of health in the event he becomes incapable of giving consent. These directives are set out in a document prepared by a notary or on a form provided by the Government through RAMQ (Régie de l’assurance maladie du Québec).

The RAMQ document pertains to vital end of life treatments only. It permits you to consent to or refuse five different types of treatment; cardio-respiratory reanimation, use of a respirator, dialysis, tube feeding and hydration. It states that your consent or refusal may shorten your life or prolong your life without any hope of improvement in your medical condition. It also states that your consent or refusal will only take effect if you are suffering from a serious and incurable medical condition and are near the end of life, or if you are in an irreversible coma or permanent vegetative state, or if you are afflicted with advanced permanent dementia.

As long as you retain capacity, you can revoke or change any directives you have given by completing another form and sending it to RAMQ. A copy of the advance directives should also be given to your health professional to be put in your medical file.

Advance Medical Directives must be followed by physicians and other professionals and cannot be overruled by those representing you when you are no longer able to make decisions yourself. The physician is legally obliged to obtain a copy of advance directives and the patient’s representative, such as his mandatary or curator, or any person having a special interest in him, has an obligation to make sure those directives are followed.

What you cannot do in advance medical directives and what no one can do on your behalf is to ask for medical assistance in dying. This cannot be requested in advance and can only be done under limited conditions by a person of the age of majority and with full capacity.

You can also advise your family and friends of your wishes in the event you lose capacity and leave a written instruction sheet with your health care providers to be put in your medical file.

The Jewish General Hospital has produced its own excellent Advance Medical Directive form and it is to be hoped that other hospitals will follow.

These forms pertain to extremely serious and end of life situations and should not replace the mandate in which you can leave instructions to cover a wider area of potential needs so that those close to you can make every effort to ensure that you are given the quality of life you would like to have.

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