Jewish Law and the Living Will
Charles B. Wagner
Canadian lawyers sometimes contact me when their religious clients require a familiarity with both Halacha (Jewish religious law) and estates.
Chaim has had numerous heart attacks and strokes. He lies in a hospital bed unable to speak. The doctor explains to his children that their father is brain dead and his disease is irreversible. Helen has incurable cancer. The doctors tell her family that it is a matter of weeks, not months. The agony from the pain is clear despite the fact that she can no longer communicate. These Canadian families must decide what medical treatment is warranted. Do they let nature take its course or do they keep their parents alive by artificial means?
So why is a Canadian lawyer dealing with this issue. Canadian lawyers sometimes contact me when their religious clients require a familiarity with both Halacha (Jewish religious law) and estates.
One such call necessitated the research upon which this article is based. The client wanted a power of attorney over personal care to ensure his family was prepared to deal with a situation like the ones described above. He wanted their decision made in accordance with Jewish religious law. Different articles and religious responses dealing with the halachic aspects of this issue can be found in the bibliography on End-of-life Issues in Halacha provided by E. Reichman, M.D. and The Halachic Organ Donor Society at www.hods.org.
The Canadian law provides a way for people to let others know in advance how they want the doctors to treat them in these situations. This can be done with a Continuing Power of Attorney for personal care or a separate document known as Health Advanced Directive or "Living Will". In Ontario, these instructions are binding on the appointed attorney.
The purpose of this article is to examine precedent Living Wills developed & published by the Commission on Medical Ethics of the Rabbinical Council of America and Agudath Israel of America and address whether they are enforceable under Ontario's Substitute Decisions Act. The forms can be found on line at www.hods.org/livingwillRCA and www.hods.org/livingwillAgudath.
It is interesting to note that Agudath Israel's precedent does not provide instances where people are allowed to choose. Instead, it indicates that Jewish law governs these decisions and provides for the naming of a rabbi who is to deal with these issues as they arise. Conversely, the RCA's precedent sets out scenarios where the grantor chooses whether or not to receive treatment. The inference being that under these types of scenarios it is halachically acceptable to refuse treatment. For example,"...If I am in an irreversible coma or a persistent vegetative state and, in the opinion of my doctor and at least two other doctors, have no known hope of regaining awareness and higher mental functions, then my wishes are...". Before using either of these precedents to draft a Health Advanced Directive, it is important to remember that neither of the above precedents was drafted to comply with Ontario’s Substitute Decisions Act.
The Substitute Decisions Act states that an attorney is a fiduciary. In Canadian common law a fiduciary is forbidden to delegate authority. The following clauses in the precedents give me cause for concern:
Agudath Israel RCA
Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with and follow the guidance of the following Orthodox Rabbi….
Concurrence of an Orthodox rabbi.
Prior to my agent making a decision about my health care, in any case not covered by these directions one of the following rabbis shall be consulted. The Rabbi's decision shall govern my agent and my doctors.
Query whether the requirement to follow the guidance or be governed by the decision of the rabbi constitutes delegation. There is not much Canadian law on this topic dealing with what constitutes delegation. While the chances of any successful challenge may be remote, one option to reduce such a risk would be to appoint the rabbi as the attorney in those limited circumstances which the grantor required rabbinic consultation.
The RCA and Agudath Israel documents were drafted with different definitions of capacity and in contemplation of the required formalities of jurisdictions other than Ontario. In Ontario, in order to have the capacity to appoint someone as an attorney for personal care or to give instructions in a living a will, the grantor must
- be at least 16 years of age;
- appreciate that the attorney may have to make personal care decisions for the person;
- have the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; and
- appreciate that the person may need to have the proposed attorney make decisions for the person.
Who may not be the attorney? In Ontario any person who provides health care to the grantor for compensation; or provides residential, social, training or support services to the grantor for compensation cannot be the attorney. The exceptions to this rule are the grantor's spouse, partner or relative.
In the context of a Will, non compliance with the formalities of execution could be fatal. However, with respect to a Power of Attorney/Health care directive the legislation provides that a court may declare the document to be valid even if the above formalities of execution were not enforced. Nevertheless, it would imprudent to ignore these formalities and risk challenges to the enforceability of the living will. The formalities of execution in Ontario include:
- the necessity of having two witnesses;
- witnesses may not be the attorney's spouse or partner, the grantor's spouse or partner, a child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child, a person whose property is under guardianship or who has a guardian of the person, a person who is less than eighteen years old.
We live in a very litigious world where people of good faith often disagree Too often the disputes cannot be resolved and end up in Canadian court. This is especially so when family members have to deal with sensitive issues relating to terminally ill patients in inexorable pain and the options facing them are difficult The chances for conflict and confusion are reduced when care and precision is taken in the drafting of wills and powers of attorney by a competent wills and estates lawyer.
Going to court to challenge the validity of a power of attorney or living will can be very complicated. Despite the temptation to jump to conclusions, it would be a mistake to substitute this review of the topic for substantive legal advice by a wills and estates lawyer. For those considering this option, there is no replacement for hiring a competent wills and estates lawyer whose own research, analysis and judgment should be canvassed prior to going to court.
Charles B. Wagner of Wagner & Associates, is a lawyer and litigator whose practice focuses on Commercial and Estate Litigation.
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