Of Living Wills, Margot Bentley and Upcoming Webinars From Nidus

We’re about five years away from a demographic tsunami—that forecast point in time when 25% of Canadians will be 65 or older. Standing in the shallows, you can already feel the sucking silence. Every institution senses the water being drawn out from around its feet. They are all bracing for the shuddering power of change when that wave hits.

Much hand-wringing is occurring over how our economic apparatus will handle this surging demographic threat, but there is also a broader social component emerging. I’m referring to the emerging awareness and everyday discussions around significant “end-of-life” issues, such as the ones at the heart of the Supreme Court of Canada’s decision in the Carter case this past month. Carter v. Canada (Attorney General), 2015 SCC 5 marked a legal sea change. Carter acknowledged society’s changed opinions around palliative sedation and withholding life-sustaining treatment, now widely viewed as ethical and humane in the right circumstances. And since it was only last month that the highest court in the land told us that the “social facts” had changed from when Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 became law, it came as a surprise to some that the Margot Bentley decision came down the way it did.

For those not familiar with BC’s Margot Bentley case, it pertains to the fate of a woman with advanced Alzheimer’s disease whose family sought the right to honour a “statement of wishes” signed in 1991, which requested no “nourishment or liquids” in the event of extreme “mental deterioration”. Based on the specifics of the case, the BC Court of Appeal sided with the Chambers Judge who had rejected the family’s petition. From a legal perspective, the Court held that wishes in the “here and now” would trump prior directives and a crucial problem with the family’s petition was the long-ago date of the advanced statement of wishes. Also from the legal perspective, the case turned on issues around the technical validity of planning instruments such as so-called “living wills”, representation agreements, advance directives and related appointments. The Court noted that “the Legislature has prescribed extensive substantive and formal requirements relating to each of these in order to protect not only the person in care but also her caregivers.” Again, that’s all from the legal perspective.

As it’s played out in headlines, however, it is about the repudiation of a dementia patient’s choice. And this is quite against the new social contract that many public observers believe Carter has given us. Suddenly—and this is the magic of affinity bias—a very sizeable percentage of news readers can now picture themselves as Margot Bentley, or at least her daughter or husband. And it is in this rare spotlight of public awareness that the unique organization known as Nidus now finds itself after the CBC turned to it.

Incapacity and estate planning in BC involves a rather bedazzling array of new and old statutes, making estate and incapacity planning a fairly smart topic to get good advice about. But until recently, that was the only thing bedazzling about it. While Nidus and its executive director Joanne Taylor have plugged away for years, the recent sea change in consciousness around these topics is finally kicking things into high gear.

The Nidus Personal Planning Resource Centre and Registry offers free webinars each month to explain the legally enforceable documents you can make in case of incapacity and to prepare for end-of-life. It also offers an online registry for storing important information and documents.