End of Life Planning: What, Who, Why and When?
WHAT IS END OF LIFE PLANNING?
End Of Life Planning is the creation of documents that facilitate your wishes and instructions before and after your death. The three most important categories are health care, financial care, and wills. Each of these are accomplished via legal documents, but don’t be scared by this. While vitally important, each document is usually short, easy to create or fill out, free or very inexpensive, and usually need not require any legal guidance.
It’s important to know that all of the planning recommended here can be changed or revoked by you at any time, for any reason. As such, you do not need to consider possible life changes in the future (eg. What if I appoint my mother for a role and she dies before me?) as you can always create a new document that supercedes the previous document(s).
WHY DO END OF LIFE PLANNING?
For many in our culture, thinking about death is terrifying so End of Life Planning is avoided. Fear of growing old, of the dying process and of death itself leave too many of us without the advance planning that can help relieve much of the stress and anxiety before and after death.
Before death, End of Life Planning assists the dying person and their loved ones to be empowered in all facets of decision making, most notably in making decisions about health care. After death, End of Life Planning assists bereaved loved ones in following the wishes of the deceased and in organizing and administering the estate with greater ease.
The time before and immediately following death is often highly emotional. It is perhaps the worst time to have to make literal life and death decisions and to handle administrative tasks and finances. By facing your mortality in advance and creating the recommended documents, much of this burden can be shifted from the highly emotional times surrounding death to the present.
WHO SHOULD DO END OF LIFE PLANNING AND WHEN?
I recommend health care planning for everyone of legal age of majority (age 19 in BC), and as you age I recommend more urgently that all of the following planning be completed. While you are more likely to die in old age, a substantial number of us die much younger than we expect.
In 2019 in Canada, about 284,000 Canadians died in the following breakdown:
3,000 were under 20 (1%)
15,000 were between 20-50 (5%)
60,000 were between 50-70 (21%)
207,000 were over 70 (73%)
So while it is increasingly important to have your End of Life Planning in place the older you get, a substantial number of us die much earlier than expected. Approximately 1 in 4 Canadians who die are under 70. The right time to do End of Life Planning is now.
HEALTH CARE PLANNING
Medical advances can keep many of us alive much longer than at any other time in history. However, the other side of this coin, which is often unspoken, is the quality of life that this can provide, or lack thereof. In some cases, medicine allows an extension of both quantity and quality, which is ideal, but in many other cases the additional quantity of life comes with a severe diminishment in the quality of life, including loss of mental capacity or the capacity to care for oneself.
When considering End of Life Health Planning, values such as one’s dignity and making empowered decisions are paramount. For example: are you prepared to have your life extended if you cannot feed yourself? Clean yourself? Communicate effectively with others? Such questions are hard to ask but it is important that you do. Not asking such questions in advance can lead to being disempowered in controlling your body and life, sometimes referred to as being “medicalized,” which is to say being caught up in the medical system without you or your loved ones having control over what happens to you.
In BC, there are two routes you can choose in medical planning: Advance Directives and Representation Agreements. Both options are legal forms which you fill out and are only activated if you are not mentally capable of making informed decisions for yourself.
ADVANCE DIRECTIVES
In many parts of the world, an Advance Directive is called a “living will.” This document specifies your wishes for your health care, laid out in advance. It can be very specific to different situations and possibilities or it can be more broad. The more specific it is, the more likely it will be applied in a given situation. Common scenarios include whether you would like CPR performed and to what degree or for what length of time you want to be kept on various types of life support.
The advantage of an Advance Directive is that you directly specify your wishes and desires for your health care. The disadvantage is that health care is often complex and unless your Advance Directive applies specifically to the exact scenario, it may not be followed. Additionally, your doctors may need to interpret your Advance Directive and may do so in a way that is not what you intended.
I recommend an Advance Directive for all adults that do not have someone they trust to make potentially life and death decisions about their health for them.
More information: https://www.nidus.ca/advance-directive/
REPRESENTATION AGREEMENTS
A Representation Agreement appoints another person to make health decisions for or with you if you are not able to do so by yourself. The appointed person becomes authorized to assume your decision making capacity for your health, or to assist you in making decisions, or both. I typically recommend both. You may also, optionally, appoint an alternative person.
The primary advantage of a Representation Agreement versus an Advance Directive is that with a Representation Agreement you will have someone to actively ensure that your wishes are followed. With an Advance Directive, all the medical team has to go on is your written words from the past which may not perfectly fit the situation or which may be interpreted incorrectly. It is hard to imagine every possible situation and clearly state your directive for each. With a Representation Agreement you will have someone to actively lobby for your wishes, so long as they clearly understand what your wishes are.
With a Representation Agreement, you will be authorizing someone to make decisions that may be life or death for you, so you must trust that person at the deepest level, you must be very clear with them about your wishes, and you must be confident in that person’s capacity to ensure your wishes are respected and followed.
I recommend Representation Agreements for those who have one or more people in their life that they trust to fill the role of a representative.
In BC there are two types of Representation Agreement:
Section 9 is the standard agreement which is undertaken at a time when you have the mental capacity to understand and agree to the representation. This agreement can be completed by you and the representative(s) at any time, so long as the signing is witnessed by two adults (there are exclusions as to who can witness) or one lawyer or notary.
Section 7 must be used if you have already lost the mental capacity to agree to the representation. This form is more complex and requires additional certification to be executed.
A Section 7 agreement can also cover routine financial affairs and legal affairs. A Section 9 agreement covers only health care. In either case, an Enduring Power of Attorney (see below) allows for a more robust representation of financial and legal affairs.
In BC, both Section 9 and Section 7 agreements are standardized forms created by the BC Government that you fill in. I recommend using these forms. A Representation Agreement can be revoked or superceded at any time, so long as you are mentally capable of doing so.
More information: https://www.nidus.ca/resources-ra/
ENDURING POWER OF ATTORNEY
In Canada, prior to 2011 an Enduring Power of Attorney was simply called a Power of Attorney, and the documents are effectively the same. An Enduring Power of Attorney is a legal document that allows an agent to make financial and legal decisions for you in a variety of situations where you are unable to do so. Examples include: if you are mentally unable to do so; if you are recovering from surgery; if you are on vacation and cannot be reached.
An Enduring Power of Attorney can be a simple document drafted by you. For most people, legal advice is not required to create an Enduring Power of Attorney. And just like a Representation Agreement, you may also, optionally, appoint an alternative agent, and an Enduring Power of Attorney agreement can be superceded or revoked at any time.
I recommend an Enduring Power of Attorney for those who are not married or in a married-like relationship, or for whom their spouse or partner is not a preferred person to handle administrative and financial decisions at potentially challenging emotional times.
More information: https://www.nidus.ca/enduring-power-of-attorney-2/resources-epa/
ESTATE PLANNING (WILLS)
A will is a legal document that stipulates what you would like done with your estate (all that you possess or own) after your death. Having a clearly worded will greatly reduces the complexity of the probate process and the possibility of disagreement between your surviving loved ones. A will can be replaced with a new will at any time, so long as you are of right mind to do so. A will should always be dated and state that it supercedes all previous wills. A will can also, at your option, contain words to your loved ones to be read to them after your death.
Who should have a will? I recommend that anyone with a notable sum of financial savings or investments, or with notable possessions such as a car or property, have a will. A simple will can be drafted quickly and can often be less than one page long.
There are many online templates and kits for wills. All such templates are fine but it is also easy and no different to create your own. The important thing to know is that a will does not need to be complicated or even witnessed, so long as it is written by hand by you (not typed or printed). This precedent was set in a famous legal case in 1948 when a Canadian farmer became trapped under his tractor and carved a will into the fender. The will was deemed legally binding and set the national and global precedent for what constitutes a will. That said, ideally a will should be witnessed, and it must be witnessed if it is not handwritten.
For most people, a will needs to be nothing more than a simple document created by you stipulating what you would like done with your estate. It must be signed. While the document itself is usually simple to create, the challenge often is in assessing how you would like to distribute your estate.
For those with complex estates, such as those with large or varied estates, or those who own or partly own corporations or companies, legal guidance is advised to ensure the will accurately details your wishes, and that your wishes are legally acceptable.
I recommend original copies of your will be kept in a secure location for yourself and given in advance to your executor. A copy can also be held securely with a lawyer.
More information: https://www.nidus.ca/estate-planning/
VITAL STATS
I recommend that you keep a single document that compiles all key numbers and records, including your date of birth, social insurance number, bank account numbers and credit card numbers, plus any insurance policies, investments, stock accounts and ownership in companies. It should also contain passwords to your online accounts as applicable.
This document will be invaluable to your loved in the event of your death. It will be particularly useful to the executor of your will. For obvious security reasons, this document should be kept in a highly secure location, either physically or behind well secured passwords if digital. At least one trusted person should be given your Vital Stats or should have access to it if needed. Giving it to the executor of your will is often the right choice, and it may be included with your will for safekeeping.
Remember to update your Vital Stats on a regular basis.
SOCIAL MEDIA
Lastly, you should consider what you would like done with your online presence. As a society, including legally, this is a new consideration. Do you want your social media accounts to be deleted if possible? Or would you prefer they became a testament to your life, or a place where those who knew you can continue to connect, share stories and support each other? Whatever you prefer, I recommend that your social media logins and passwords be included in your Vital Stats, or given to another trusted person separately, with clear instructions for what to do after your death.