Wills & Estate Law – Creating a Living Will

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Wills & Estate Law

A living will, also known as an advance directive, is simply a document that lets people state their wishes for physical care in case they become permanently ill, unconscious, or require emergency medical attention. You can include your “living will” or “advance directive” as part of your Power of Attorney for Personal Care.

A living will has no power after death. According to a recent survey, half of all Canadians do not have a living will. It is best to incorporate a living will into a Power of Attorney for Personal Care (which names one or more specific persons to carry out your wishes).

Here are a few things you need to know when deciding to make a living will: Any “competent” person who is over the age of 18 is allowed to execute a living will. In order to become effective a Power of Attorney for Personal Care needs to be witnessed by at least two witnesses, who themselves are both competent and over the age of 18. Not all witnesses are eligible as witnesses to a Power of Attorney for Personal Care.

In Ontario, prior to your living will becoming effective, it must be determined that you are mentally unable to make your own decisions concerning your health, safety and physical condition. You should know that your attorney will only be able to make those personal care decisions that you cannot make yourself. You might, for example, be incapable of making a serious health care decision but still be able to make your own choices about routine day-to-day matters. Your Power of Attorney for Personal Care may only be used during a time that you are mentally incapable of making your own personal care decisions.

Finally, in order for the terms of a living will to be acted upon, someone other than you needs to know of its existence, preferably someone close to you. Should you make a living will, do advise all of your immediate family members of your decision.

Before executing a Power of Attorney for Personal Care, discuss the terms of the living will portion with your attorney so as to determine whether such person will carry out your wishes. Although possible, it is definitely not recommended that you simply purchase and download a standard living will form or template from the internet.

The benefit of having a lawyer draw up a Power of Attorney for Personal Care with a living will component is that they can help you properly express your wishes. For legal advice on how to create your living will, consult the legal team at Mackesy Smye. Our experienced attorneys can provide the specific legal advice you seek.

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