Section 3 Counsel
2 days ago
British Columbia Wills, Trusts and Estates Law, Elder Law and Estate Litigation.
A. The learned Chambers Judge erred in law by failing to address whether [Mrs. Bentley] had consented to the process of “prodding” and “prompting” that precedes her being fed by Maplewood.B. The learned Chambers Judge erred in law by placing the onus on [Mrs. Bentley] to prove a “clear refusal of consent”, rather than placing the onus on Maplewood to prove consent by [Mrs. Bentley] to being “prodded” and “prompted”.C. The learned Chambers Judge erred in law by failing to find that, in the absence of consent to the process described above, a battery is committed by Maplewood when it prods and prompts [Mrs. Bentley].
 In closing, I emphasize again that the scope of this appeal was a narrow one and that none of the chambers judge’s conclusions regarding the documents executed by Mrs. Bentley, the applicability of the various statutes to them, or the determination of her wishes was appealed. I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes. It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not. This is consistent with the principle of patient autonomy that is also reflected in the statutes referred to earlier (see especially s. 19.8 of the HCCCFA Act), and in many judicial decisions, including Carter v. Canada(Attorney General) 2015 SCC 5, where the Court emphasized that when assisted suicide is legalized, it must be conditional on the on the “clear consent” of the patient. (Para. 127.)
Notice of dispute(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and(b) the issuance of an estate grant or the resealing of a foreign grant.
Contents of notice of dispute(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and(b) the grounds on which the notice of dispute is filed.
Court may alter or dispense with noticeOn application, the court may do one or both of the following to avoid any prejudice that would otherwise result to the intended applicant, to another person or to the estate:….
 The applicant has met the threshold required by Rule 25-2(14). There is a risk that if she is not included in the class of persons entitled to receive information about the estate and to file a notice of dispute, she will be prejudiced. The prejudice is the risk that Mr. Cosar will be granted probate and the estate will be distributed before the applicant’s claim can be assessed. That prejudice outweighs the possible delay in the distribution of the estate.
 The June 17 Documents has two pages. The first page is headed "Sharone Young" and "June 17, 2013", followed by the words:Distribution of furniture, art, antiques, jewelry, sculptures, First Nation masks etc. This is being prepared if I have not sold, given in advance of death.Thereafter, six people, described as beneficiaries, are named and, under each name, several items of personal property are listed. The final words on the first page are:If items not taken buy any of the beneficiaries provide to sell - Maynards Auction, Consignment shops in West Vancouvers including antiques and designer clothes, mink coat. Maynards would be good resource for items they do not sell for auction.There are items not named that could be the choice of named beneficiaries. The first page of the June 17 Document is signed by Ms. Young. The second page of the June 17 Document begins with the words "Beneficiary Contacts Information". Thereafter, the following words appear:For physical items in home or safety deposit box (jewelry for Kelly Young)) Bank of Montreal, Main and Mountain Hwy, North Vacouver, BC. It is my intention to give before my passing.[ list of names and contact information ]Money for estate to provide through Will:[ list of names of individuals and organisations ]This is being provided as a caution. Zach and Faren can be responsible, with help, once old enough to be responsible.
 The October 15 Document has one page. Ms. Young's address and the date appear at the top of the page, followed by these words:TO WHOM THIS MAY CONCERN:This will serve to confirm, I have requested Nancy Sunderland of 1920 Riverside Dr., North Vancouver, BC to distribute to named beneficiaries household effects including art, all antiques, all furniture. Specific items have been identified for specific beneficiaries. As well, beneficiaries may also choose other items not named for them for the rest.Because Zach and Faren Cross-Nadeau are the youngest, they may have first choice of unnamed items. Jefferey Young and then the others based upon age for fairness. Items not taken by all beneficiaries are to be consigned, sold or auctioned on behalf of the estate.
 As is apparent from the foregoing, a determination of whether to exercise the court's curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased's testamentary intentions, as that concept was explained in George. In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances. The burden of proof that a non-compliant document embodies the deceased's testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky [v. Sawatzky, 2009 MBQB 222] at para. 21; Kuszak [v. Smoley,  M.J. No. 670 (Q.B.)] at para. 7; Martineau [v. Myers Estate,  M.J. No. 339 (Q.B.)] at para. 21. While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased's testamentary intention: George at para. 81.
I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.I know that I am dying, but I am far from depressed. I have some down time - that is part and parcel of the experience of knowing that you are terminal. But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy. I will not waste any of my remaining time being depressed. I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality. There will come a point when I will know that enough is enough. I cannot say precisely when that time will be. It is not a question of “when I can’t walk” or “when I can’t talk.” There is no pre‑set trigger moment. I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile.” When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good‑bye and obtain final closure - for me and for them.
My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives. I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by. . . .[. . .]. . . What I fear is a death that negates, as opposed to concludes, my life. I do not want to die slowly, piece by piece. I do not want to waste away unconscious in a hospital bed. I do not want to die wracked with pain.
14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.241. Every one who(a) counsels a person to commit suicide, or(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 We agree with the trial judge. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.
 Applying this approach, we conclude that the prohibition on assisted dying is overbroad. The object of the law, as discussed, is to protect vulnerable persons from being induced to commit suicide at a moment of weakness. Canada conceded at trial that the law catches people outside this class: “It is recognized that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives” (trial reasons, at para. 1136). The trial judge accepted that Ms. Taylor was such a person — competent, fully-informed, and free from coercion or duress (para. 16). It follows that the limitation on their rights is in at least some cases not connected to the objective of protecting vulnerable persons. The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
 In order to justify the infringement of the appellants’ s. 7 rights under s. 1 of the Charter , Canada must show that the law has a pressing and substantial object and that the means chosen are proportional to that object. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes,  1 S.C.R. 103.
 This question lies at the heart of this case and was the focus of much of the evidence at trial. In assessing minimal impairment, the trial judge heard evidence from scientists, medical practitioners, and others who were familiar with end-of-life decision-making in Canada and abroad. She also heard extensive evidence from each of the jurisdictions where physician-assisted dying is legal or regulated. In the trial judge’s view, an absolute prohibition would have been necessary if the evidence showed that physicians were unable to reliably assess competence, voluntariness, and non-ambivalence in patients; that physicians fail to understand or apply the informed consent requirement for medical treatment; or if the evidence from permissive jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope, leading to the casual termination of life (paras. 1365-66). The trial judge, however, expressly rejected these possibilities. After reviewing the evidence, she concluded that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them:My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced. [para. 883] The trial judge found that it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process (paras. 795-98, 815, 837 and 843). In reaching this conclusion, she particularly relied on the evidence on the application of the informed consent standard in other medical decision-making in Canada, including end-of-life decision-making (para. 1368). She concluded that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity (para. 831).
1. What are legal standards of diminished capacity?2. What are clinical models of capacity?3. What signs of diminished capacity should a lawyer be observing?4. What mitigating factors should a lawyer take into account?5. What legal elements should a lawyer consider?6. What factors from ethical rules should lawyer consider?7. How might a lawyer categorize judgments about client capacity?8. Should a lawyer use formal clinical assessment instruments?9. What techniques can lawyers use to enhance client capacity?10. What are the pros and cons of seeking an opinion of a clinician?11. What if the client’s ability to consent to a referral is unclear?12. What are the benefits for the lawyer of a private consultation with a clinician?13. How can a lawyer identify an appropriate clinician to make a capacity assessment?14. What information should a lawyer provide to a clinician in making a referral?15. What information should the lawyer look for in an assessment report?16. How does a clinical capacity evaluation relate to the lawyer’s judgment of capacity?