End of Life Law


End-of-life situations are difficult for everyone involved. In addition to legal issues, there are ethical and emotional issues that can result in complicated and challenging situations. Watching a loved one die while you are fighting with relatives or a health care professional is a nightmare. We understand the legal issues, but we also understand that you are going through a difficult time. We look at these issues through multiple lenses and work towards the best overall resolution for our clients.

End of life cases can involve the following topics:

  • assisted dying
  • capacity to make decisions
  • consent
  • feeding tubes
  • home care
  • organ donation
  • palliative care
  • powers of attorney
  • guardianship
  • long-term care
  • life support
  • medical assistance in dying
  • long-term care
  • long-term care

Decision-making at the End of Life

We provide advice on issues that arise at the end of life, such as:

  • When is it legal to withdraw life support?
  • Are doctors allowed to “pull the plug” without family consent?
  • What happens if two people appointed by a Power of Attorney do not agree?
  • What is the legal status of euthanasia in Canada?
  • Can food and water be withheld to hasten the dying process?
  • What can or should you do if a family member is seeking medical assistance in dying?

Medical Assistance in Dying

Medical assistance in dying is permitted in Canada, but there are many uncertainties about what exactly is legal, and what could result in civil or criminal liability. We advise family members seeking guidance before their loved one requests medical assistance in dying.

Substitute Decision-making

End-of-life decision-making is challenging. It is an overwhelming rsponsibility to have the power to decide whether a person lives or
dies.

The law specifies who makes decisions on another person’s behalf and sets out legal obligations that a substitute decision-maker (“SDM”) must follow. Family members do not always agree about what is best; for example, whether to sign a form not to resuscitate the patient (“DNR”), whether to switch to palliative care, or whether to withdraw a feeding tube. Sadly, these disputes often result in breakdowns in relationships.

We can help you understand the law and help your relatives better understand your position. We not only provide advice, but can facilitate discussions and mediate disputes. Where necessary, we can also represent you at the Consent and Capacity Board. This can include bringing an application to seek directions, seeking permission to depart from a patient’s prior expressed wishes, or applying to become your loved one’s “representative”.

Organ Donation

Organ donation can occur in two ways: from a living donor to a living recipient (“inter vivos”) or from a deceased person to a living person. Cases involving inter vivos organ donation are generally quite straightforward from a legal perspective in Ontario, although there are rules around consent.

The law is more complex when a decision must be made about whether to donate a deceased person’s organs for therapeutic, research or educational purposes. It can be difficult to decide whether to donate a loved one’s organs, particularly if that person did not express a particular wish. Conflict can arise when family members disagree about what to do or disagree about what the deceased person would have wanted.

Our role is to assist you in managing these difficult situations. We provide you with advice on what the law permits or requires, and develop strategies to negotiate with relatives and the health care team about how to handle the situation. Where necessary, we can represent you at mediation or other legal proceedings.

We also offer mediation services to assist family members to reach a mutually satisfying resolution.

Autopsies

An autopsy, or post-mortem examination, is a thorough review of a deceased person’s body.  Family members are typically consulted with respect to this process. Some families may have particular concerns with respect to a coroner’s decision about whether or not to perform an autopsy. The coroner’s decision is legally binding, but family’s preferences may be considered and families may be able to convince the coroner to change his or her course of action.

Autopsies may delay funeral arrangements or other religious practices. Family members may wish to seek legal advice in such
circumstances.

Coroners are medical doctors who have specialized training in death investigations. A death may be investigated if it appeared to be from non-natural causes, where there was potential negligence or the death happened unexpectedly. Legislation also requires that certain types of death be reported to a coroner. Depending on the circumstances of a person’s death, a coroner may
perform an investigation that considers the following questions:

  • Who was the person?
  • When did they die?
  • Where did they die?
  • How did they die?
  • By what means did they die?

Death investigations may delay funeral arrangements or other religious practices.  They may also involve the coroner entering and inspecting certain premises, obtaining records and seizing items. Family members may wish to seek legal advice in such circumstances. An inquest is a legal proceeding presided over by a coroner in which the above five questions are answered. The purpose of an inquest is not about determining liability, but rather, learning from the death in order to make systemic improvements and hopefully prevent similar deaths from happening in the future.

It is up to the coroner to determine whether or not an inquest is necessary, although in some circumstances an inquest is mandatory. Where the coroner determines that an inquest is unnecessary, certain persons have the right to request the coroner hold an inquest. We provide assistance to family members who wish to have an inquest conducted.

Where an inquest is held, family members often desire legal representation. We can provide advice and representation in these circumstances.

Powers of Attorney Disputes

A Power of Attorney for Personal Care (“POA”) is a document in which an individual appoints another person to act as the substitute decision-maker and make health care decisions on his or her behalf in the event he or she is no longer capable to do so. For example, a woman with early stage Alzheimer’s may appoint her daughter to make decisions on her behalf, effective only when her condition declines to the point she cannot make certain decisions for herself. An attorney is the person who is appointed and does not refer to a lawyer in this context. An individual may also specify preferences in the event his or her health declines or a particular medical situation presents itself.

If an individual does not appoint an attorney, then the law automatically designates who is the substitute decision-maker. A POA is important to draft if you wish to have a particular person make decisions on your behalf and that person is not automatically pointed by law. We can help you to determine who would be automatically appointed on your or a loved one’s behalf.

The interpretation of a POA can be complicated, particularly if it is vague, poorly drafted or it is unclear whether the individual contemplated the present circumstances. At times an attorney is compelled to follow the individual’s instructions but does not want to do so because the instructions may not have considered the exact scenario or the course of action indicated is no longer in the person’s best interests. Sometimes the attorney struggles because to follow the directions means to withdraw life-sustaining measures. A physician might interpret a POA differently than a family member. This can lead families and patients’ health care
providers to a specialized tribunal called the Consent and Capacity Board.  The health practitioner who proposed the treatment might ask the Board to determine whether the substitute decision-maker is complying with his or her legal obligations. The substitute decision-maker risks losing the power to make decisions if it is found his or her decisions are not legally compliant.

We represent families at the Consent and Capacity Board. Although we advocate for you, we are cognizant of the fact that the other parties are the patient’s health care provider and the patient, and an overly adversarial approach is often counter-productive. We are skilled at striking the balance between effective advocacy and preservation of relationships

In addition to providing advice and advocacy services, we also draft Powers of Attorney for Personal Care.