“If I become a vegetable, I want my doctor to pull the plug!” is a sentence that many non-medical professionals have heard their client say. If you’ve ever wondered: how can I make sure my client’s medical wishes are respected? This article is for you as it gives an overview of the various legal options available to your clients who wish to express their consent to care, in advance.

This article is based on Quebec legislation and it is the practitioner’s responsibility to consult his or her province’s legislation on this subject to determine the applicable laws. Although the information in this article is based on Quebec legislation, other jurisdictions may have similar alternatives.

 Medical Aid in Dying

The right to die with dignity was a battle first introduced by Francine Lalonde (former MP) when she presented Federal Bill C-407 in 2005. What is today known in the Province of Quebec as Medical aid in dying has been a work in progress for years and has recently undergone serious upgrades.

In 2015, medical aid in dying became available to Quebecers over the age of eighteen, suffering from a serious and incurable illness that will reasonably lead to their death and who are able to freely consent to end-of-life care, i.e. they have decision-making capacity.

In March 2021, the “reasonable foreseeability of natural death” criterion for medical aid in dying was abolished. However, for patients whose natural death is not reasonably foreseeable, the assessment of eligibility for medical aid in dying must extend over a period of at least 90 days. To be eligible, patients must be able to reiterate their consent to treatment throughout the whole process. Yet, some patients lose their cognitive abilities during this period and can no longer consent to treatment, thereby rendering them ineligible for medical aid in dying. The inability to give such consent due to a deteriorating state of health, as becoming incapacitated, has been an obstacle for many patients.

In the province of Quebec, since October 30, 2024, a person suffering from a serious and incurable illness leading to incapacity can now file an early request for medical assistance in dying. Under the new Quebec legislation, a patient who has been diagnosed with a serious and incurable illness may apply for medical assistance in dying while still capable of consenting to care, with the intention of receiving said assistance once he or she has become incapacitated. For example, in the case of an Alzheimer’s diagnosis.

It is worth noting that, under the Criminal Code, administering medical aid in dying prematurely is not permitted, but the administration of justice falls under provincial jurisdiction. Consequently, Quebec prosecutors have been instructed not to initiate criminal proceedings in these cases.

Although this advance request can be made before witnesses, it can also be executed before a Notary, ensuring that the patient’s wishes are clear and in line with all requirements, while offering the necessary legal protections.

If your client is considering this option, it is essential to ensure that his or her Will is up-to-date.

Alternative measures available to your clients in the absence of a diagnosis

 

• Advance medical directives (AMD)

Advance medical directives allow a person to state in advance the medical care that they will agree or refuse to receive in specific clinical situations in the event that they become incapable of giving consent to care.

AMD can be executed by Notarial deed or prepared by the client personally through a personalized form that must be requested from Régie de l’assurance maladie du Québec (RAMQ).

• Protection Mandate

The Protection Mandate is a legal document in which a person can designate in advance one or more trusted individuals to look after his or her person and property in the event of incapacity. It can also be used to express the person’s general wishes regarding the care he or she accepts or refuses, such as the use of therapeutic relentlessness or heroic measures.

A Protection Mandate can be signed by the client in front of two witnesses or by Notarial deed.

 

Key Take Away: Tackle the subject!

Consent to care is a subject of great importance to Quebecers. Although dying with dignity is a quest pursued by many, few have taken the necessary steps to ensure that their wishes are respected in the event that they lose the ability to express themselves. You should be proactive in addressing this topic with your clients so that their wishes are respected by all. It is important to always recommend that your clients consult their healthcare professional to obtain all the necessary medical explanations for the decisions they wish to make.

 

Written by Ophely Karam, Estate & Trust Consultant, Scotiatrust