Posted in Estate Planning

The long-awaited changes to Canada's Medical Assistance in Dying (MAID) Law came into force on March 17, 2021. The amendments came in response to Truchon, a decision from the Superior Court of Quebec.

The eligibility for MAID no longer requires the natural death of the patient to be reasonably foreseeable.

The amendments create two different procedural safeguards for medical practitioners to apply. The first applies to those whose natural death is reasonably foreseeable. The notable amendment with respect to this track is the removal of the minimum 10-day reflection period. The second procedure applies to those whose natural death is not reasonably foreseeable.

Under both procedures, the patient can only make the request for MAID in writing after they have been informed that they have a "grievous and irremediable medical condition."

A "grievous and irremediable medical condition" is one where the patient:

• has a serious illness, disease or disability (excluding mental illness until March 17, 2023); and
• is in an advanced state of decline that cannot be reversed; and
• experiences unbearable physical or mental suffering, caused by their health, which cannot be relieved under conditions the patient considers acceptable.

The amendments clearly require the patient to request MAID in writing after they have been informed of their "grievous and irremediable medical condition". The current legislation does not permit advance requests for MAID, however, Parliament has until March 17, 2023 to address the issue of advance requests.

It is yet to be seen whether future amendments to MAID will alter estate planning for those who do not have a grievous medical condition, or whether courts will uphold Powers of Attorney for Personal Care or Wills with a clear intention to request MAID once they reach a certain threshold of incapacity.

MAID and estate planning is complicated. If you have any questions, please contact us.

In Ontario, the Will of a person who later marries is revoked by the marriage and is no longer valid, with a few exceptions (s.15 of the Succession Law Reform Act.

The most common exception is when the Will includes a declaration that it is being made in contemplation of the marriage (s.16(a) of the Succession Law Reform Act.)

A Will including a declaration that it is made in contemplation of the marriage remains valid even after the marriage has been solemnized.

At the time of writing this Article, a subsequent common-law relationship does not revoke the Will.

Elderly father cuts out three of his children

• What happens when an elderly widowed father gives his house to one of his four children (the one who lives with him)? Can the other three siblings set aside the transfer? In a recent case (Kozusko v Kozusko) the Superior Court held that parents are free to dispose of their property as they see fit, and to prefer one child over the others provided the parents understand clearly the consequences of their actions.
• Courts today will not interfere with a person's exercise of free will so long as the person is fully aware of what their rights are and of the consequences of their actions. The dissenting children will have an uphill battle to overturn their father's wishes.

Contact us below for more information on how to set up your will to avoid such disputes.