Personal directive to be followed irrespective of grantor’s best interests

By The IJ Staff | May 12 2015 09:00AM
At issue

For a few decades now, we have witnessed the introduction and modernization of laws dealing with powers of attorney and personal health directives (or similar terms according to the particular province).These documents enable a person (as grantor) to give instructions to be carried out and wishes to be respected after that grantor has lost his or her own capacity to express those views personally. They generally also allow the naming of one or more individuals who have the legal responsibility to act under these documents.

Still, this area of law is in its infancy, with case law just starting to emerge to interpret the very challenging issues that can give rise to conflict. In particular, just how far will the law go to enforce a grantor’s earlier instructions that may arguably not be in the grantor’s best interests at a later date when mental capacity has been lost?

Sweiss v. Alberta Health Services, 2009 ABQB 691

After Samir Sweiss suffered severe irreversible brain damage, his treating physician put in place a do-not-rescuscitate order (DNR). The effect would be to discontinue mechanical ventilation support, which conflicted with Mr. Sweiss’ previously signed declaration requiring that “all Islamic law be followed” in his care. After a lengthy consideration of the law and facts, the judge upheld the DNR.

It was determined that the signed declaration did not meet the requirements of being a personal directive under Alberta law. However, it was also noted that “in cases where a personal directive is found to exist, it would appear that, pursuant to the authority in the Personal Directives Act, the wishes, beliefs and values of the patient “must” be followed.” [Judge’s own emphasis]

B.M. v. K.S., 2015 NSSC 105 [March 2, 2015]

J.L. was 94 years old, living alone in her home with the assistance of full-time paid caregivers, 7 days/week and 24 hours/day. The annual in-home care cost was between $240,000 and $250,000, with about $493,000 available in savings.

J.L.’s son B.M. was her delegate under a personal directive. J.L.’s friend K.S. and BMO Trust Company were co-attorneys under a general power of attorney. Evidence showed that J.L. had become mentally incapable, activating both the personal directive and power of attorney.

The personal directive included a specific provision with respect to “Home care”, which read: “I express the wish that my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged, including the assistance of a full-time caregiver to allow me to remain in my house, no matter what my physical or mental condition might be.”

B.M. testified his belief that his mother “spends her days with very little stimulation or interaction with others, and that she spends her time watching television, “disconnected” from what she is watching.” In that light, he submitted to the court that it would be in J.L.’s best interest to be relocated to a local nursing home. K.S. opposed moving J.L., and offered a contrary view that she was content with her home life.

The direction for the delegate and attorneys to work together was viewed by the judge as being J.L.’s acknowledgement of the financial constraints to remaining in the house. At present, there were sufficient financial resources to support the home care.

The judge held that “the greatest weight is to be given to Mrs. L.’ Personal Directive”, and specifically commented that it was not for the court to determine whether or not that would fulfill her best interests. It was ordered that J.L. would “remain in her home under the present caregiving and financial arrangements, for so long as it remains possible.”

Practice points
  1. Given the serious implications of these documents, legal advice can be beneficial, even though generally they may be executed without a lawyer’s assistance.
  2. Naming more than one person in these key decision-making roles can provide a useful check.
  3. As the B.M. v. K.S. case makes clear, the grantor’s own words can hold great sway. While this may provide solace to a grantor, it also emphasizes the need for clear language that properly reflects the informed intentions of the grantor.
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