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Planning ahead for incapacitation, not just death, a good idea

When it comes time to create an estate plan the first documents that come to someone’s mind are probably a will and perhaps a basic power of attorney. These may of course be an important part of a plan but in many cases are not enough. People should look to the future—not to their death—but rather to how they want to be cared for if their health fails and they are no longer to make decisions about the care they should receive. 

This area of law is ruled by Ontario’s Substitute Decision Act and Health Care Consent Act. It provides that those named as substitute decision makers must follow the instructions provided by an individual when he or she was deemed capable to make such decisions. These wishes may be communicated via a living will, letter of wishes or power of attorney for personal care. While it is possible that someone could verbally communicate their wishes as well, this is usually less desirable since they can be harder to enforce.

Issues with enforcement of the instructions outlined by an individual may arise in a variety of situations. In addition to occurring when the wishes are communicated verbally, it could also happen when the instructions are not detailed enough. For the best chance of someone’s wishes being followed, the wishes should be detailed and practical. If they are not, they have a greater chance of being challenged successfully.

Taking steps while creating an estate plan to increase the chance of your instructions regarding care being followed is a good idea. In most cases this involved the assistance of an estate planning lawyer.

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