Medical Assistance in Dying

In 2015, medical assistance in dying (“MAiD”) became legal in Canada. Since that time, the Canadian and provincial governments have released a number of laws controlling MAiD. These laws say that MAiD occurs any time a medical professional prescribes or administers a substance to someone (who has requested it), and that substance causes that person’s death. MAiD and end-of-life decision-making is a complex topic that is not going away any time soon. Recent numbers show that over 3,700 people have obtained MAiD since 2016. In the majority of these cases, the person receiving MAiD was over the age of 65.

There are many conditions that have to be satisfied in order for someone to be eligible for MAiD. Perhaps the most important condition is that the person seeking MAiD must consent to the procedure. This is because consent must be given twice: first when assisted death is initially requested, and again right before the substance causing death is administered. The upshot of this requirement is that it is impossible to give consent in advance through a power of attorney for personal care because consent must be given just before the assisted death. As more and more Canadians consider the option of assisted death, the question of whether it is possible for a person to give instructions regarding MAiD through a power of attorney for personal care (“POAPC”) becomes more pressing.

This means that any clause in a POAPC that tries to give someone the power to obtain MAiD will not work. But this does not mean that you should never use those clauses. In the future, the law may change to allow advanced consent to assisted death. So if you have a clause in your POAPC that gives directions about MAiD and you become unable to give consent, your attorney may some day be able to consent on your behalf. A recent poll found that 8/10 Canadians think people should be allowed to consent to assisted death in advance. Perhaps this law will allow the planning of assisted death in the future.