What is a living will?
A living will is a common term for a document that outlines your wishes and preferences for medical treatment and personal care if you are incapacitated and are unable to express your wishes for care as a result.
A living will can provide guidance to loved ones about your personal care when you’re unable to speak for yourself. For example, you may outline your wishes for what they should and shouldn’t do regarding life support if you fell into coma, or your preferences about the use of breathing or feeding tubes. How detailed your instructions in a living will can be will vary depending on the restrictions of the applicable provincial law.
Although commonly referred to as a living will, the legal name for this document is also different depending on the law of the province under which the document is created. For example, you may also hear a living will referred to as a:
- Advanced Health Care Directive
- Advanced Medical Directive
- Personal Directive
- Health Care Directive
- Representation Agreement
Living wills vs. Powers of Attorney
In most Canadian provinces a Power of Attorney and living will serve different purposes:
- Living wills name a person who can make decisions regarding health care and outlines what your wishes are for medical care or medical treatment if you’re unable to make decisions for yourself.
- Powers of attorney name a person who has the legal right to act on your behalf if you’re unable to make decisions for yourself. Depending on the type of Power of Attorney, it can be used to cover personal care decisions (including health care) or decisions regarding property.
Generally, in the absence of a living will, a substitute decision maker can be appointed by the court. For example, in Ontario, a family member may apply to be appointed, or the court may appoint the Public Guardian and Trustee as substitute decision maker.
In short, if you don’t have a living will or Power of Attorney, decisions about your personal care would likely be made without anyone knowing your wishes and preferences, which means those decisions may not match your preferences.
Why should I make a living will?
A living will is a valuable document that can help ensure your wishes regarding care decisions are known if you’re incapacitated. It can:
- Prevent disagreements between family members on what’s best for your care.
- Assist healthcare workers in making the right decisions for your treatment.
- Ease the burden on loved ones as they won’ t have to make difficult decisions or any guesses.
What to include in a living will
While specific requirements will be different from one province to the next, a living will should include 4 key things:
A named substitute decision maker – This is a person who you designate to be responsible for making decisions on your behalf should you become incapacitated. Your substitute decision maker can be a spouse, adult child, close relative, or other adult person of your choice.
Scope of decision-making powers – Your living will should outline what decisions your substitute decision maker will and won’t be able to make on hour behalf. You could give them unlimited authority to make care decisions, or authority limited to following specific instructions.
Guidelines for how to care for your children – This is particularly important if you have children under the age of majority. If you become incapacitated and unable to do so, your living will should outline who will make decisions about the temporary care of your children.
Instructions regarding preferred medical care and procedures – The main purpose of your living will is to provide instructions to your subsitute decision maker surrounding your medical care. If you’re incapacitated and unable to weigh in on decisions and have your say, your living will can help your substitute decision maker determine how to proceed in several different scenarios such as:
- Whether you want to receive CPR following heart failure and if so, for how long.
- If you want to receive assistance breathing or eating via tubes.
- What medications you consent to be administered.
- If you consent to receiving a blood transfusion.
- If you want to donate your organs or tissue.
- If you want to receive dialysis if your kidneys fail.
- If you wish to be kept on life support and if so for how long.
- What kind of palliative care you’d like to receive.
How to make a living will
You can make a living will yourself, or with the help of a lawyer. However, it is important to keep in mind that each province has different legal requirements for the creation of a valid living will, such as rules around witnessing and acknowledgement of the document. As with all aspects of your estate plan, it is important to consult with a professional.
Frequently asked questions
What do I do with my living will once it’s been created?
It’s a good idea to make copies of your living will and share these among relevant people like family members and, most importantly, your designated substitute decision maker. You may also want to keep a copy stored safely in your own home, but where it is accessible when needed.
Do I still need a “regular” will?
Yes – a living will serves a different purpose from a last will and testament. Your living will outlines your wishes for your medical care and treatment while you’re still alive. Your will, on the other hand, outlines how your wish your property to be distributed after you’re gone. If you haven’t already made a will, you may want to look at creating one around the same time you draft your living will and other estate planning documents.
How much does a living will cost?
This will depend on factors such as how you choose to make your living will (e.g., writing it yourself versus with the expert help of a lawyer), as well as where in Canada you live. Of course, enlisting the help of a professional has many benefits which may outweigh the costs. For example, a lawyer can help ensure your living will is compliant and legally binding.
Do I need a witness when making a living will?
The requirements will vary depending on what province you live in. In most cases you require at least one adult witness, although requirements about who can be a witness will depend on your province or territory of residence. It’s a wise idea to ask a professional such as a lawyer when making your will to ensure you meet all legal requirements.
Do I need a lawyer to make a living will?
You don’t require a lawyer to make a legally binding living will in Canada, although working with a lawyer can help make sure you don’t miss anything that could be critical to ensuring your living will is considered valid and can be followed.
Are living wills legally binding?
Whether your living will is legally binding will depend on whether it’s been created to satisfy all requirements of the applicable law. If it has been properly created, it will grant legal authority to the appointed substitute decision maker to make decisions on your behalf if you become incapacitated.