Can an Attorney for Personal Care Make Decisions about Organ Donation?


Written on July 29, 2014 – 6:00 am | by Jasmine Sweatman

Many people believe that a Power of Attorney for Personal Care is the proper tool in which to express their intention to donate organs.  Is this correct?  If so, does this mean that an attorney for personal care may be granted the authority to make decisions regarding the grantor’s organ donation?

In Canada, organ donation is an “opt-in” regime, and in Ontario, it is governed by the Trillium Gift of Life Network Act.  The organization that facilitates organ donation consent in Ontario is the Trillium Gift of Life Network.

First-person consent for inter-vivos organ donation requires consent in writing by a person who is at least sixteen years of age and mentally competent (TGLNA, s. 3(1)).  Consent for post-mortem organ donation may be given either in writing or, orally in the presence of two witnesses during the person’s last illness (TGLNA, s. 4(1)(a) and (b)).

Should organ donations be dealt with in a power of attorney for personal care? POAPCs are dealt with in the SDA.  The SDA provides authority to a SDM under a POAPC to make decisions on behalf of the grantor concerning personal care, health care, nutrition, shelter, clothing, hygiene or safety, keeping in mind the best interest of the grantor, while he or she is incapable.  Whatever the nature of the decision, it must be within the rubric of enhancing or sustaining the health and life of the grantor.  Making a post-mortem organ donation in no way fits within this mandate, and in fact section 66(14) states an SMD does not have authority to make decisions for a grantor regarding organ donation.

The raison d’etre of a POAPC is to authorize substitution of the decision maker, to replace the first-person decision maker with a third party decision maker.  The authority for such delegation of decision-making as expressed in the instrument itself is rooted in the SDA.  Since neither the SDA nor the TGLNA contemplate a grantor’s delegation of decision making to consent to organ donation, the use of a POAPC under the SDA with respect to organ donation is an inappropriate use of a POAPC.  However, if part of a POAPC, among other things, states the first-person’s consent to organ donation after death, it is “a writing” which constitutes written consent to donate.  Clearly, in the latter example, the document is used as a vehicle to record consent and not as a POAPC.  That an attorney is named in that POAPC is irrelevant.  Hence, when advocating the use of a POAPC regarding post-mortem organ donation, it is important to clarify that such instructions are enforceable (barring family objection) not because a POAPC is used as the vehicle, but rather, because the instructions are first person written consent, in compliance with the TGLNA.

The rationale for providing written instructions to donate organs after death in a POAPC is that this document is likely to be examined by hospital staff and family prior to death while the same instructions provided for in a Will may not be read until after burial of the deceased, thus frustrating the donor’s intentions.

However, to achieve the proper timing does not require the use of a POAPC.  It is possible to achieve the same results by advising clients who are executing a POAPC and have expressed a wish to donate organs after death, to provide written instructions to that effect, perhaps attached as a memorandum to the POAPC and referred to in the POAPC.  This approach may reduce misunderstanding by the client, his or her family and the public at large, with respect to the role of the POAPC regarding the intended organ donation.  Separating the contents of the documents demonstrates their independent legal status, while the physical attachment (by a paper clip, for example) achieves the timing goal.

In the context of post-mortem organ donation the provisions of the SDA are inapplicable.  The sole statute governing consent to post-mortem organ donations is the TGLNA, which, while providing for consent by third party family members in the absence of first party consent, does not contemplate consent by an attorney pursuant to a POAPC.  Furthermore, notwithstanding binding written consent by the potential donor, hospitals do not carry out those wishes if there is objection from the family.

Estate lawyers’ role in advising clients on these matters is limited.  When clients raise questions regarding the use of a POAPC for purposes of organ donation after death, the lawyer’s advice should reflect the distinction between delegation of decision-making authority in a POAPC, and written consent provided in writing under the TGLNA.  In the context of organ donation, the former cannot be done.  With respect to the unsettled state of affairs given the legislative context and public policy considerations, at best, the lawyer may, by encouraging the client to convey his or her wishes to close family members, increase the likelihood that the client’s wishes will be honoured after death.

Until next time,

Leigh Sands

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    A different kind of trust, a different set of rules


    Written on July 28, 2014 – 5:33 am | by Elaine Blades

    In 21 x 3, I wrote about three, sometimes tricky, trust rules:  the 21-year deemed dispositon rule; the rule against accumulations; and, the rule against perpetuities.  Following the post, I realized I had not been specific enough when a reader - esteemed charitable foundation advisor and former colleague, David Windeyer – questioned whether the rule against perpetuities applies to charitable trusts.  Instead of simply answering David directly with a “not really”, I thought I’d take this opportunity to address not only this particular question, but to also provide an overview of some of the other differences between personal and charitable trusts.   

    The rules I discussed apply to personal and other non-charitable trusts.  The rules were created to achieve particular public policy objectives, to wit, the regular recognition of capital gains and payment of tax and the importance to society of keeping private money in circulation.  Charitable trusts – charitable giving in general – are subject to a different set of rules that reflect a different public policy objective, that is:  charitable giving is a good thing and should be encouraged.

    To that end, charitable trusts are subject to a different governance regime, with several unique advantages available only to charitable trusts.  For example:

    1. the rule against perpetuities, practically speaking,  does not apply to charitable trusts
    2. rules relating to accumulation of income do not apply to charitable trusts
    3. the 21-year deemed disposition rule does not apply to charitable trusts
    4. a charitable trust is an exception to the rule that purpose trusts are void (however, in order to be valid,  a charitable purpose trust must be for the public benefit and support one of the “four heads of charity”:  relief of poverty, advancement of religion, advancement of education, other purposes beneficial to the community)
    5. a charitable trust is an exception to the rule (sometimes called the “certainty of objects” rule) that all trusts must have an identifiable beneficiaryor beneficiaries
    6. availablility of the cy-près doctrine
    7. income tax advantages

     The rules applicable to personal trusts are generally designed to limit the use of such trusts, for reasons of public policy. In contrast, a different public policy goal – to encourage charitable giving – has resulted in a regime in which charitable trusts (and charitable giving in general) are not only exempt from many of these constraints, they are afforded additional favourable treatment in order to encourage their use.

    Thanks for reading.

     
     
     
     
     
     
     
     
     

     
     
     
     
     
     
     
     
     
     

     

     
     
     
     
     
     
     
     

     
     
     
     
     
     
     
     
     

     
     
     
     
     
     
     
     
     
     

     

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      Correcting a Mistake in a Will – What did the Testator Intend


      Written on July 25, 2014 – 8:54 am | by Justin de Vries

      Elizabeth Ann McLaughlin died at the ripe old age of 98.  She was predeceased by her husband.  Together they had six children, including Daniel.  Daniel, as estate trustee, sought to rectify what he characterized as a solicitor’s mistake in his mother’s secondary will.

      For many years prior to her death, Mrs. McLaughlin had no relationship with her son, Thomas, or her daughter, Judith.  She had previously instructed her long time solicitor, Mr. Walsh, to remove Thomas and Judith from her will.

      In 2010, Mrs. McLaughlin instructed Mr. Walsh to draft primary and secondary wills to reduce probate taxes (multiple wills are a common estate planning tool).  She again confirmed that Thomas and Judith were not to be named as beneficiaries.  However, in drafting the secondary will, Mr. Walsh repeated the cash bequests set out in the primary will and omitted the residue clause (the secondary will only dealt with the house).  The effect of the drafting errors was that the beneficiaries under the primary will benefitted from the same set of cash bequests twice and the residue of the secondary estate (which was not gifted under the will) would go by way of intestacy, such that all of the children, including Thomas and Judith, would benefit equally.  Adding further insult to injury was the fact that the secondary will revoked the primary will.

      According to the court, while the secondary will contained no obvious error or ambiguity on its face, the mistake become apparent in light of the surrounding circumstances, especially the admission by the solicitor of his mistake and the ample evidence that Mrs. McLaughlin did not want to benefit Thomas and Judith.

      Judith submitted that there was no evidence that Mrs. McLaughlin did not approve of the words in the secondary will.  According to Judith, if the will was read over by Mrs. McLaughlin and it appeared that she understood it, it should be presumed that Mrs. McLaughlin knew and approved of the contents.  Even if Mrs. McLaughlin failed to understand the legal effect of the actual words in the will, it was not a rectifiable mistake.

      Judith maintained that a will should not be changed except in exceptional circumstances.  Judith claimed that the words of the secondary will were clear and unambiguous.  Therefore, no extrinsic evidence of Mrs. McLaughlin’s intentions should be introduced even though an intestacy was created, cash bequests were doubled, and the primary will was revoked.  Plainly put, what Mrs. McLaughlin may have intended should not be considered by the court.

      The general rule is that in construing a will, the court must determine the testator’s intention from the words used in the will and should not consider extrinsic evidence of intent.  Evidence proffered by a third party (usually a beneficiary) of what the testator intended has been generally considered self-serving and unreliable.  However, the court does have the power to rectify (i.e. fix) a will in order to give effect to the testamentary intentions of the deceased where there was a clerical error (often described to as a “slip of a solicitor’s pen”) or where the testator’s instructions have been misunderstood or not carried out by the solicitor.  In other words, the court can correct or rectify a solicitor’s mistake.

      In considering whether to rectify the will, the court sought to determine exactly what happened in order to explain how the mistake occurred and to rebut Judith’s position that no mistake had, in fact, been made.  In other words, the court looked at what Mrs. McLaughlin intended rather than just accepting the solicitor’s evidence that he did, in fact, make a mistake.

      The court held that Mrs. McLaughlin likely wanted to create a primary and secondary will because her son Daniel was updating his will at the same time.  Mrs. McLaughlin was told she could avoid probate fees by executing a secondary will and this is something she would have wanted to do.  Moreover, the court found that Mrs. McLaughlin did not want to create an intestacy, to revoke her primary will, or duplicate the cash bequests in her primary will.

      Finally, while Thomas and Judith suggested that Mr. Walsh and Daniel were overbearing, there was no benefit to Mr. Walsh to prepare a will that would expose him to a claim for negligence or for Daniel to orchestrate a will where he would receive a smaller share, as he would on an intestacy.  The court accepted that Mr. Walsh had made a mistake and the ample evidence that Mrs. McLaughlin never intended to benefit Judith and Thomas.  As such, the court was prepared to rectify the will as requested.

      Happy Litigating!

      Justin

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