This article was reviewed by Jay Brecknell, CFP®.
There are only three guarantees in life: change, death, and taxes. We can’t avoid any of them, so the best thing we can do is be prepared. Yes, estate planning can be an uncomfortable topic, and you might think having a will is enough, but that only covers you once you’ve passed on. This is where a living will comes into play.
Having what is commonly referred to as a Living Will (in B.C. it is legally known as an Advanced Care Directive, but we’ll use the common term “living will” for this article) is a crucial part of estate planning, yet only 20% of Canadians have one.
A living will is an essential document for all adult Canadians to have in place. Why? Because a living will is what dictates your medical care should you become incapable of making your own medical decisions. Accidents that lead to incapacitation (i.e. a coma) can happen at any age, as can debilitating medical conditions (i.e. a stroke) and it’s important for the people who care about you to know what medical care you want and what you don’t want should such a situation arise.
In short, a living will helps your loved ones ensure your wishes regarding your medical care will be met in the event you are unable to give directions to the medical team yourself. But there is more to it than that.
We’re going to answer:
- What a living will covers
- The difference between a living will and a power of attorney
- How to create a living will
- What to do once you have a living will
What Does a Living Will Cover?
A living will is a legally binding document that outlines four important things:
- Who you have appointed as your representative should you become incapable of representing yourself regarding your medical care (e.g. a coma, Alzheimer’s or dementia, a severe head injury). You can also outline how much authority this person has and any limitations to that authority. (In B.C. this is known as a Representation Agreement, which is separate from, but often done in conjunction with, your Advanced Directives.)
- The medical care you would and would not like to receive. This can include, but is not limited to:
- Whether or not you would like to receive CPR.
- Whether or not you would like to receive life supporting aid via a feeding or breathing tube.
- If you would consent to a blood transfusion.
- What kind of surgeries you may or may not be open to receiving, or at what state you are open to surgery.
- If you are open to receiving experimental treatments.
- If you would like your organs to be donated.
- If you would like to be put on life support, and if so, for how long.
- If you have children under the age of majority, your living will may also include instructions regarding their care while you are incapacitated.
- Personal care decisions for things such as living arrangements, diet, hygiene, exercise and safety concerns.
A living will not only appoints who is able to make medical decisions on your behalf, but clearly states what authority they have, and guides this person and your medical team in making decisions in alignment with your wishes.
It’s great to talk about these things with your family and medical practitioners, but these conversations are not legally binding. A living will gives legal authority to your representative and ensures you receive the care you want to receive even if you are incapacitated.
Living Will vs. Power of Attorney
If you’ve followed our previous advice about working with an estate lawyer to arrange your power of attorney, you may be wondering if you need to have a living will. The answer is yes. It is important that you have both a living will and a power of attorney.
A living will oversees your medical needs should you be unable to self-represent, whereas a power of attorney oversees your financial affairs. You can appoint the same person to be your representative in your living will and as your power of attorney, but you need to have both documented in order for this person to legally be able to represent you in medical decisions.
How To Create a Living Will (Advanced Care Directive) in B.C.
Many Canadians cite that they haven’t created a will because they don’t know where to start or worry they can’t afford the lawyer fees to have one drawn up. The good news is, that for your living will, the BC Government has a free online resource. However, if your needs or specific requests go beyond the basics offered with this tool, we do recommend speaking with an estate lawyer.
There are a few requirements to keep in mind when setting up your living will according to the B.C. Government guidelines:
- When deciding on whom to select as your representative keep in mind that this person must:
- Be 19 years of age or older.
- NOT provide paid personal or health care to you.
- NOT be an employee of a facility where you live and through which you receive personal care or health care (unless they are your child, parent, or spouse).
- Agree to be your Representative (We know this one might seem obvious, but you’d be surprised by the number of people who fail to ask the person they are naming as their representative if it’s a responsibility they are willing to take on).
- When signing your Advanced Care Directive (living will), you must have TWO witnesses present, and these witnesses must:
- Be 19 years of age or older.
- NOT be the same person you chose as your Representative, nor their spouse, child, parent, employee, or agent.
- NOT provide paid personal care, health care, or financial services to you, or be that paid person’s spouse, child, parent, employee or agent.
- Understand your type of communication, unless the witness receives interpretive assistance.
- Sign the Advance Directive in your presence and the presence of the other witness.
- Note: only one witness is required if that person is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.
What To Do Once You Have Your Living Will
Once you have created your living will, signed it, and had it signed by two witnesses (or one, if that person is a lawyer or notary public), then we suggest making copies and giving one to your partner/spouse, your adult children should you have any, your power of attorney, and your lawyer.
We also recommend reviewing the document with your family members, so they know your wishes. Should the need unfortunately arise for your chosen representative to step in and make medical decisions on your behalf, your family should also know what those decisions are to make the situation easier for everyone involved.
Let’s Recap
A living will, known as an Advance Care Directive in B.C., is an important legal document that assigns a representative who has the authority to make medical decisions on your behalf in accordance with your wishes should you become incapacitated.
Though nothing could make the situation easier, if the need to use a living will arises, it ensures your loved ones are not having to make these decisions in the moment. Planning is an act of care and though it can be hard to think about the situation wherein a living will may be necessary, the best course of action is always to plan.