Who Makes Health Decisions if You Can’t?
Would you like having your ex-spouse making decisions about you living or dying?
I recently read an article in the Wealth Professional written by Nicolas Hefferman titled “Lamar Odom tragedy highlights importance of living wills.” What struck me was that the comatose former NBA star’s ex-wife, Khloe Kardashian, was responsible for making his medical decisions.
Terminology is different between the United States and Canada, and a living will does not carry the same meaning in Canada. In Canada, each province has a specific document that affords an individual the ability to make health care decisions in the event of an individual’s incapacitation. In Ontario, this document is known as a power of attorney for personal care, a representative agreement in BC, and a personal directive in Alberta. Regardless of the naming conventions, these documents provide a significant amount of authority to the named representative. The question is, do these agreements remain in effect after a divorce, or are they automatically revoked?
If something happened to me last night, who could (or would) make healthcare decisions on my behalf?
We asked the CMPA (Canadian Medical Protection Association) for clarification and here is a direct quote from their guidelines:
“In the absence of a valid Advance Directive or duly authorized substitute decision-maker, strictly speaking only the court or someone appointed by the court may properly consent to or refuse medical treatment where the patient lacks the requisite capacity to make the decision. Unfortunately, the legal procedure for the appointment of a guardian of the patient can be lengthy and expensive. As a result, and from a practical standpoint, physicians have often proceeded on the basis of the family’s approval where the medical treatment is clearly required, where the patient’s condition may deteriorate if not treated promptly, and the treatment is determined to be in the patient’s best interests. Should there be any disagreement among family members, or if the proposed treatment carries significant risks, then specific legal advice should probably be sought about that situation.”
Suppose you have a power of attorney for personal care and name your spouse as your substitute decision-maker. If you live in Ontario and get divorced this agreement still valid. In other words, unless you rescind it or create a new power of attorney for personal care, the “old” one is still in effect.
If you live in Alberta or the Yukon it’s the same as Ontario. Your personal directive (Alberta) or advance directive (Yukon) remains in effect. Only British Columbia differs in that if the spouse is named and the marriage ends in divorce, your representation agreement is automatically terminated unless specific provisions are included for it to survive. Each province has its own terminology and law governing these documents.
To review, if you have power of attorney for personal care (or jurisdictional equivalent), and your spouse is named as your substitute decision-maker, there is a possibility that they will retain their responsibilities even if you get divorced. If you are in an accident and need someone else to make medical decisions on your behalf, it may be your ex-spouse who makes these decisions.
What to do?
Our suggestion is that if you do have a power of attorney for personal care and you get divorced, please review the document with a professional ASAP in order to ensure that the proper the document still meets your current needs.
If you’d like any additional information about power of attorney for personal care agreements please contact our office and an advisor will be happy to review options with you.