Powers of Attorney and Medical Assistance in Dying - Common Questions and Concerns

By Elikem Deley

Trigger Warning: This article contains themes and topics that may be upsetting to some individuals.

A Power of Attorney for Personal Care is a document that appoints someone to make decisions on a person’s behalf related to their health, medical treatment, accommodations, hygiene, etc. Despite providing a wide scope of powers related to health and care, attorneys under Powers of Attorney for Personal Care are explicitly prevented from accessing Medical Assistance in Dying (“MAiD”) from falling under the scope of these powers.

What is MAiD?

Medical Assistance in Dying (“MAiD”) is a fairly new development in Canadian healthcare. Simply put, MAiD is a procedure in which a patient is given medications to intentionally and safely end their life.

Due to its relative recency, and its recent mention in the news, many people have a lot of questions about the procedure, how it works, as well as concerns about consent and mental acuity.

Qualifying for MAiD

If you or a loved one is interested in MAiD, you must first determine whether you meet the criteria (as set out in the legislation) for accessing MAiD.

Previously, MAiD was only available to those whose death was “reasonably foreseeable”. However, 2021 amendments to the legislation expanded the eligibility criteria to other situations like those with chronic pain. By 2024, the eligibility criteria are expected be expanded to include people with certain mental disorders, which is further discussed later in this article.

The eligibility requirements for an individual in Ontario are as follows:

• be eligible for publicly funded health care services in Canada (or in the applicable waiting period),
• be 18 years of age or older,
• be capable of making health care decisions,
• have a grievous and irremediable medical condition, which means:

1. the patient has a serious and incurable illness, disease or disability, and 
2. the patient is in an advanced state of irreversible decline in capabilities, and 
3. the patient is enduring physical or psychological suffering, caused by the medical condition or the state of decline, that is intolerable to the person and cannot be relieved under conditions that they consider acceptable;

• be making a voluntary request 
• provide informed consent to medical assistance in dying, which means:

1. for a patient whose natural death is reasonably foreseeable, the patient provides consent after having been informed of the means that are available to relieve their suffering, including palliative care 
2. for a patient whose natural death is not reasonably foreseeable, the patient provides consent

• after having been informed of other means available to them, including counseling, mental health supports, disability supports, community services and palliative care; and 
• after having been offered consultation with relevant professionals, as available and applicable; and 
• after having discussed these means with the medical or nurse practitioner and given serious consideration to these means. 

This criteria and other information can be found at the following website: Medical Assistance in Dying - Health Care Professionals - MOH (gov.on.ca)

MAiD for Mental Illness—Changes Coming Down the Pipeline

Currently, MAiD is available for people with terminal illnesses, like cancer, as well as people with chronic pain. However, the government is proposing to expand it to include with psychiatric illnesses and other mental health disorders. The 2021 amendments mentioned above first introduced the inclusion of mental illness as a criterion for MAiD; however, there was to be a two-year delay in implementing this criterion. Just this week, however, the Government of Canada proposed pushing back the implementation of these amendments until March of 2024. The Government has stated that upon extensive consultation with experts and Canadians, more time is needed to ensure these amendments are rolled out safely and effectively.

The introduction of mental disorders as a criterion for MAiD raises many legitimate concerns. Some experts assure that MAiD is always assessed on a case-by-case basis. To qualify, the mental disorder must be grievous and irremediable to qualify under these upcoming changes.

The exclusion of attorneys under Powers of Attorney for Personal Care and the current inability to plan for your future health care needs and end of life wishes still frustrates many people. Should you be able to consent to MAiD in the future if you develop such a qualifying condition? Should you be able to grant someone else, like your attorney under Power of Attorney for Personal Care the ability to make a decision that is best in line with your wishes and preferences (with the risk that they may not, in fact, follow your wishes exactly)? The answer to these questions right now is no. This answer protects the vulnerable and those who are incapable from being taken advantage of or having other people decide their fate. Perhaps it does not make sense to put this very personal and very complicated decision in someone else’s hands. Perhaps it does make sense to give everyone the ability to decide their own end of life plans. The Government continues to consider these competing interests and it will be interesting to see what happens with the proposed amendments and whether any further expansions of MAiD are in the cards.