In June 2016, new federal legislation came into force dealing with medical assistance in dying (MAID) in Canada. Medical assistance in dying (MAID) has been a controversial issue and a hot topic of discussion for some time. This issue has also been referred to as: voluntary euthanasia, assisted suicide, assisted dying, physician assisted suicide, physician assisted death, etc. For the purposes of my blog post, I will be referring to this issue as medical assistance in dying (MAID). MAID provides patients, who meet certain eligibility criteria, with the option to end their life with the assistance of a doctor or nurse practitioner.

I am not writing this blog post to start a debate on this topic. I want to provide a summary of the progression of the law dealing with MAID and MAID’s impact on Personal Directives in Alberta. I intend to be as objective as possible in my explanations of MAID. We all have our own personal opinions, views, values, and beliefs. Some people are in support of MAID and others are against it. The important point is that this legislation is in force and it is important to know of its existence and impact.

Section 241 of the Criminal Code of Canada stated that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 said that no person may consent to death being inflicted on them. Together, these two sections of the Criminal Code prohibited MAID in Canada. In February 2015, the Supreme Court of Canada released its decision in the case of Carter v. Canada (Attorney General), [2015] 1 SCR 331. The Court found that the prohibition on MAID violates the right to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. Sections 241(b) and s. 14 of the Criminal Code of Canada were determined to be void insofar as they prohibit MAID for “a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” (at para. 127 and 147).

The Supreme Court of Canada’s declaration of invalidity of those sections of the Criminal Code of Canada was suspended for twelve (12) months to give the government time to revise existing laws and draft new laws. In December 2015, the federal government requested a six (6) month extension to the suspension of the declaration of invalidity, however they were only granted an additional four (4) months to make changes to the laws. During this suspension of the declaration of invalidity, individuals across Canada could access MAID by applying to a Court for authorization if they met the criteria set out in the Carter decision.

The federal government eventually introduced new legislation. An Act to Amend the Criminal Code and to Make Related Amendments to other Acts (Medical Assistance in Dying), SC 2016, c 3 became law on June 17, 2016. According to this new law, a Canadian can request MAID when they meet certain eligibility criteria. Section 241.2(1) states:

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible  —  or, but for any applicable minimum period of residence or waiting period, would be eligible  —  for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

To be considered as having a grievous and irremedial medical condition, a person must meet all of the following criteria (s. 241.2(2)):

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

There are additional procedural details set out in the legislation.

In drafting the new legislation, the federal government took a conservative approach to the application of the Carter decision. There are various other complex issues that are not addressed in the legislation. These issues include: (1) mature minors under the age of 18 requesting MAID; (2) people who suffer from mental illness only; and (3) advance requests for MAID to be carried out when a person is no longer able to make their own health care decisions and express their wishes. These issues pose unique challenges and need further research. The new legislation requires further studies to be conducted in an effort to examine the legal, medical, and ethical questions. Once this further research advances, the legislation will likely be reviewed and amended.

Now, with all that information on the progression of the law on MAID, how does this new law affect Personal Directives in Alberta? In one of my previous blog posts, we learned all about Personal Directives. As a quick refresher, a Personal Directive is a written, signed, dated, and witnessed document that gives someone else the authority to deal with your personal, non-financial matters, and medical care if you become mentally incapable of making those decisions for yourself. According to my interpretation of the new legislation with respect to MAID, you are not currently able to give your agent the authority to request MAID on your behalf in a Personal Directive. The legislation is clear that you must be capable of making decisions with respect to your health at the time of receiving MAID. Someone else cannot make the request for MAID on your behalf. If a Personal Directive has taken effect, and your agent is making your personal and health care decisions, you are no longer capable of making those decisions for yourself. It is true that at the time of signing the Personal Directive you were competent and capable of making your own decisions. However, when the Personal Directve takes effect this is no longer the case. You cannot receive MAID if you cannot make health care decisions for yourself.

This issue of MAID and its impact on Personal Directives is one of the issues that requires further examination and research. At some point in the future, the legislation may clearly state that advance requests for MAID written into a Personal Directive are valid and enforceable. Due to the way the legislation is currently drafted and my interpretation of the legislation, I do NOT draft advance requests for MAID clauses in Personal Directives. You may be able to find lawyers who have changed their practise with respect to Personal Directives, and who will draft MAID clauses into the document. Without clear permission in the legislation, I think that those clauses will be void and unenforceable. Likely, the rest of the document will still be valid and the document would be read as if the MAID clauses were removed. It is very prospective thinking to include advance requests for MAID clauses in Personal Directives.

Obviously, it is important to keep your estate planning documents up to date. Therefore, with a change in the laws, it may be necessary to update your estate planning documents. For those of you who are pro-MAID and who would like an advance request for MAID clause in your Personal Directive, I suggest you wait and see if the law changes in that regard. If it becomes clear that advance requests are permissible, then update your documents. I will begin drafting advance requests for MAID in Personal Directives in accordance with clients’ instructions once the law is clear that advance requests for MAID in Personal Directives is permissible.

Yours truly,

Crystal Schening

You’ve now made the decision to have your estate planning documents prepared. You may still have several questions about the process involved. Who should assist you in the preparation? How long will it take? How much time and effort will it take?

Kinetic Legal Services can assist with your estate planning needs. With personalized service and flat-free pricing, the process is simple, straightforward, and low stress.

If you hire Kinetic Legal Services to prepare your estate planning documents, here’s what you can expect. The process can be broken into 3 steps:

1. The initial consultation;
2. The preparation/drafting of the documents;
3. The final signing meeting.

When you contact Kinetic Legal Services, I will set up a meeting with you at a convenient time and location for an initial consultation. This initial consultation will take 1 to 1 ½ hours.   During this meeting, I will go through a questionnaire with you to obtain your contact information, personal circumstances, financial situation, and instructions for the documents. You can take a look at the Will questionnaire here.

After the initial consultation, I will prepare a draft of the documents. It will take approximately 1 week for me to prepare the draft documents. If you are on a short timeline, I can make arrangements to have the documents prepared sooner. Once the documents are drafted, I will send you copies of the drafts to review. After your review, I will set up an appointment with you for the final signing meeting.

Usually, the final signing meeting is scheduled approximately 2 weeks after the initial consultation. However, this timeline can be shortened or lengthened as needed. At the final signing meeting, we review the documents and proceed to signing. This meeting will take approximately 1 hour. In order to have the Will properly executed, there must be 2 witnesses who are present at the time of signing the documents. The 2 witnesses cannot be anyone listed in the documents or a spouse of a person listed in the documents. It is best if the 2 witnesses are friends or neighbors.

Once the documents are signed, I will provide the original documents to you in a convenient package for storage in a safe location (i.e. fire proof safe or safety deposit box). I do not store original estate planning documents at my office. In addition to the signed originals, you will receive scanned copies of the original documents in PDF format for your records.

I recommend that you review your estate planning documents once per year to ensure that the documents accurately reflect your wishes. In the future, if your circumstances change and you need to update the documents, I can quickly and easily arrange for the updates with my electronic record keeping and paper-less office.

At the end of the process, a lot of clients are quite surprised at how easy it is, the minimal time involved, and the minimal work involved on their part. Clients often wonder why they did not have the documents prepared sooner.

With this new-found knowledge of the estate planning documents and the standard process involved in order to have the documents prepared, I hope that everyone will take the necessary steps to have the documents prepared.

This blog post is the last post in this series of The Basics of Estate Planning.

All the best,

Crystal Schening

The third document that normally forms part of a standard estate planning package is a Personal Directive. Let’s take a look at some basic information about Personal Directives and why they are important.

What is a Personal Directive?

A Personal Directive is a written, signed, dated, and witnessed document that gives someone else the authority to deal with your personal, non-financial matters (such as medical care) while you are still alive. It is a written instruction given to another person, usually a spouse or close family member, advising them of the extent of medical care you wish if you become mentally incapable of making the decisions for yourself. Also, this document can give the power to make decisions regarding your care, where you live, and what activities you should be involved in should you lose the capacity to make these decisions for yourself.

Why should you prepare a Personal Directive?

Your family and health care professionals could be in a difficult position not knowing your wishes and desires regarding your medical care and personal decisions. If you did not prepare a Personal Directive and you were hospitalized for a serious illness or condition which resulted in you losing your mental capacity for a period of time, the medical staff would have concerns about receiving instructions about your medical care from your close family members. Health care professionals, firstly, would not have the assurance that your loved ones have the legal authority to provide instructions, and secondly, they have no assurance what your instructions would have been.

Also, if you do not sign a Personal Directive and you require long term care when you lose your mental capacity, your family will have no legal authority to decide where you live and will not have the authority to deal with the health care professionals unless a Court Order is obtained appointing someone as your Guardian. This Order can be obtained, but it involves an expense for legal fees and it may have to be renewed every few years.

Who should prepare your Personal Directive?

It is wise to have a lawyer draft your Personal Directive. A lawyer can assist you to properly specify the medical care that you want. For example, do you want to be resuscitated if the chances of your full recovery are minimal? The clauses placed in the Personal Directive are important since you want your wishes carried out. These clauses should be carefully drafted and a lawyer can assist you with this. There are standard forms available from stationary stores which can be legally binding if they are properly witnessed and signed by you when you have the mental capacity. However, a Personal Directive can be an important document in your estate planning and it should be carefully drafted.

Summary

I recommend that everyone have a properly drafted and executed Personal Directive in place. For similar reasons as with an Enduring Power of Attorney, a Personal Directive ensures that your wishes regarding your medical care and other personal decisions are clearly in writing. Having this document in place in advance will also make it easier on your family members.

As an aside (although still pertaining to estate planning), I wanted to talk a little bit about organ/tissue donation. There are clauses that can be inserted into your estate planning documents specifying organ/tissue donation. However, there are times when it is too late for your organs/tissues to be donated by the time the document is found and relied upon. For those of you who wish to donate your organs/tissues, it is important that you talk to your family and friends confirming your intention to donate some or all of your organs and/or tissues. If you wish to donate some or all of your organs/tissues, you should register on the Alberta Organ and Tissue Donation Registry at www.ultimategiftalberta.ca or at any Registry office.

Now that we’ve reviewed the basics of all 3 documents in a standard estate planning package, I’m hoping that you all see the importance of each and every one of the documents. If you do not have these documents in place, I urge you to make the necessary arrangements and have these documents done up.

Kinetic Legal Services can help you prepare the estate planning documents needed in your particular situation. Stay tuned for my next blog post which will be the final part in The Basics of Estate Planning series. I will be discussing the process involved in preparing the estate planning documents, and what you can expect if you hire Kinetic Legal Services to prepare your documents.

Yours truly,

Crystal Schening

The last blog post was all about Wills. This post, as well as the next one, will focus on the other documents that normally form part of a standard estate planning package. When preparing estate planning documents, most people (including lawyers) spend more time thinking about and drafting the Will. However, Enduring Powers of Attorney and Personal Directives are also important estate planning documents, and should not simply be an afterthought. Let’s take a look at some basic information about Enduring Powers of Attorney.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a written, signed, dated, and witnessed document that gives someone else the authority to deal with your financial affairs while you are still alive, but mentally incapacitated. It can give the power to deal with bank accounts, investments, cars, houses, and other important financial matters. It can give another person power to sign any legal document which you could legally sign. The document is called “enduring” since it still has legal effect if you lose your mental capacity and you are unable to care for your own financial affairs.

Why should you sign an Enduring Power of Attorney?

If you become mentally incapacitated without an Enduring Power of Attorney, your nearest relatives would have to bring a Court Application to be appointed as your Trustee. No one would be able to deal with your financial affairs, such as writing cheques on your behalf or selling your house, unless they obtain a Court Order.

When does an Enduring Power of Attorney come into effect?

You can state that the Enduring Power of Attorney is to take immediate effect and is to continue if you become mentally incapacitated. Most people state that the Enduring Power of Attorney will take effect only when they become mentally incapacitated. Usually, this event will occur if two medical doctors write letters to this effect. An Enduring Power of Attorney can be changed or revoked anytime you wish, as long as you maintain your mental capacity. The Enduring Power of Attorney cannot be changed if you have lost your mental capacity.

Who should you choose as your “Attorney”?

In the Enduring Power of Attorney, the Attorney is the person (or persons) you choose to handle your financial affairs. This person is most often a spouse or close family member. The person should know your wishes and you should trust them to make the financial decisions you would have made if you had maintained your mental capacity. You can choose more than one person or a corporate Trustee to act as Attorney, and if the first chosen Attorney is unwilling or unable to act, you can choose an alternate. In the Enduring Power of Attorney, you can specify the powers and direction you give to your Attorney.

Who should prepare your Enduring Power of Attorney?

It is wise to have your Enduring Power of Attorney drafted by a lawyer. A lawyer can ensure that you do not insert clauses in the Enduring Power of Attorney that could be inappropriate and that you have the clauses properly drafted to ensure that your wishes will be carried out. Also, it is important that when you sign the Enduring Power of Attorney, that you are fully aware of its legal effect. A lawyer will ensure that proper advice has been given. The lawyer will also document the interview to ensure that you had the capacity to understand the Enduring Power of Attorney when it was signed. Many precedent Enduring Powers of Attorney are available at stationary stores and they are legally valid if signed in front of a witness. However, this can be an important document in your estate planning and it should be carefully drafted.

Summary

Regardless of the amount of assets you own, I recommend having a properly drafted and executed Enduring Power of Attorney in place. I find it quite surprising that a lot of people I speak with, from various walks of life, do not have these estate planning documents in place.

I can honestly say that I have an Enduring Power of Attorney in place. Not only do I have a sense of reassurance that my wishes are in writing, I also take comfort in knowing that the situation will be easier for my family members to handle if I become mentally incapacitated. We all think “nothing will happen to me!”. The truth is: anything can happen and it can happen suddenly. It is better to be prepared, not only for yourself, but also for your family members.

I also want to mention that if your primary residence is in Alberta, and you have assets in another jurisdiction, you may need to draft and execute an Enduring Power of Attorney in that other jurisdiction. This will depend on the laws of the jurisdiction of where the assets are located, and whether that jurisdiction recognizes extrajurisdictional Enduring Powers of Attorney. If you have concerns about property you own outside of Alberta and whether your Alberta Enduring Power of Attorney will be recognized, you should talk to a lawyer and get some advice about your particular circumstance.

That’s a lot of information, so I think that’s enough about Enduring Powers of Attorney. Keep your eye out for my next blog post about Personal Directives.

Yours truly,

Crystal Schening

I cannot stress enough the importance of having the necessary estate planning documents in place and ensuring that they are up-to-date. Many people have every intention of having the documents put together, but they just don’t take the time to get them done. Other people may not understand the documents or what is needed to have them done. In the next few blog posts, I want to provide some basic information on estate planning documents and their importance.

When I refer to “estate planning documents”, I am specifically referring to a Will, Enduring Power of Attorney, and Personal Directive. In this blog post, which is Part 1 of 4, I will focus my discussion on the Will. Part 2 will focus on Enduring Powers of Attorney, Part 3 will focus on Personal Directives, and Part 4 will focus on the process involved and what you can expect when you hire Kinetic Legal Services to prepare the documents.

What is a Will?

A Will is a legal document in which you declare to whom your possessions are to go after your death. An Estate includes all real estate and all personal property that you own. However, some assets will not form part of an Estate. For example, those assets with a designated beneficiary (i.e. RRSPs, life insurance, pension) other than your estate, as well as assets that are truly jointly owned (where the right of survivorship applies).

Should you prepare a Will?

A Will ensures that your assets will be distributed to those relatives, friends, and charities whom you wish to benefit. In the absence of a Will, your assets will be distributed according to a scheme outlined in legislation. This results in your surviving relatives inheriting your assets as set out by the Government, and such a distribution may not be what you would have wished.

Without a Will, lengthy and expensive Court proceedings may be necessary before an Estate can be distributed to the beneficiaries. Also, it can be very upsetting to your family if your intentions were not stated. This could create unnecessary conflict among your family and beneficiaries.

Who can make a Will?

If you are 18 years of age or older and have the mental capacity to understand the nature and effect of the Will, you can make a Will.

Who should prepare your Will?

A Will is an important and carefully worded legal document. It is wise for everyone to have their Will drafted by a lawyer to ensure that their wishes are carried out and to prevent any misunderstanding or conflict among beneficiaries. The cost is minimal compared with the possible costs of rectifying problems caused by improperly drafted and executed Wills.

Summary

Regardless of your particular situation or the number of assets you own, I recommend having a Will and keeping it up-to-date. I think having a Will is most important for those families with minor children. As a parent, our main goal is to provide for our children. Having a Will ensures that your children will be provided for in 2 distinct ways: 1) financially, since your children would inherit your assets, 2) physically/emotionally, since you can appoint someone you trust to take over as caregiver upon your death.

Many of you may be asking whether I practice what I preach. The answer is YES: I have a Will. It puts my mind at ease knowing that my young son will be properly cared for in the event that something were to happen to my husband and I. If you don’t have a Will, I urge you to seriously consider getting one. I would be happy to help anyone who would like a Will and to answer any questions.

Stay tuned for the next blog post, which will be all about Enduring Powers of Attorney.

Crystal Schening

Hello, world. This is my very first blog post…ever. I am not a writer by any stretch of the imagination. To be honest, I am quite nervous about starting a blog. However, I made the decision and here goes nothing.

In my first post, I wanted to introduce myself as a person and let everyone know what I’m all about. It’s more than just my profile on my website or what’s listed on my resume. I want people to know me on a personal level. I plan to focus subsequent blog posts on particular matters within various areas of the law.

About 1 year ago (while I was on maternity leave), I made the huge decision to start my own business. My husband and I decided that we did not want to put our son in child care. Starting my own business and being my own boss enabled me to stay home with our son, yet continue my career. The scariest part was the thought of not having guaranteed income. I put together a business plan and got all the necessary financing and documentation in place. I officially started running my home-based law firm in September 2015.

I’m a sole practitioner without an assistant. I am the lawyer and the assistant rolled into one. I am a full time mother, and part time lawyer. I am very grateful to be able to stay home with my son and continue my career growth in my chosen field. Having a young child makes it difficult to have telephone conversations, meet with clients, and get work done. The great thing about being your own boss is that you choose your own hours. I get work done at odd hours, and not necessarily during regular business hours. I am not always able to answer the phone, but I will return voicemails when I am able to.

It can be intimidating to speak with or meet with a lawyer. Some lawyers may come across as arrogant and place themselves on a pedestal, thinking that they are better than everyone else simply by the fact that they have a law degree. My personality is the opposite of arrogant. I am actually quite shy (hence the reason I focus on solicitor work, instead of areas where I’d need to step foot in a courtroom). I respect everyone. I am approachable, personable, laid back, and accomodating. I’m not driven by the almighty dollar and I don’t wear a ‘suit and tie’ everyday. I’m not the type of person to charge my clients the absolute maximum that I can. I’m honest and upfront with my fees. My fees are lower than some other law firms, since I don’t have as much of the overhead costs.

I think that it’s important to support local small businesses. I’m hoping everyone will see the value in the services that I’m offering. For right now, I’m just trying to get the word out there that I’m here, I’m available, and I have something to offer. Currently, I am the only law firm running a business in Penhold and I’m hoping that residents of Penhold use the local services. Of course, the scope of my service availability is not exclusive to the Penhold area. I’m happy to assist clients in Central Alberta, the Edmonton area, the Calgary area, and anywhere in between.

Clients can rest assured that my work is done with the utmost confidence and with professionalism. If there is something I don’t know, I tell the truth and find a solution. For those of you who think I would make a good fit in assisting with your legal needs, I can be contacted by phone, by text, by email, or through my website. You can also follow me on Twitter and like my Facebook page. That’s all for now.

Until next time…

Crystal Schening