The use of boilerplate language when drafting power of attorney for personal care documents can have potentially harmful consequences, the Ontario Superior Court of Justice warned in a recent decision. Specifically, the drafting of "end of life" provisions must be approached with diligence and caution.  

This decision could potentially be the first of many cases that may ultimately lead to an expanded duty of care for lawyers when drafting, advising and taking instructions respecting power of attorney for personal care (POAPC) documents.

Friedberg et al v. Korn

An elderly woman suffered cardiac arrest while on vacation in Florida, resulting in severe brain damage that left her in a “persistent vegetative state.” She was subsequently transported to a hospital in Toronto where her treatment, life support, included a feeding tube and tracheostomy. Her doctor subsequently became aware of a POAPC executed 10 years earlier. The POAPC provided for "end of life" wishes stipulating that where there was "no reasonable expectation" of recovery, she should not be kept alive by "artificial or heroic measures". Her doctor applied to the Consent and Capacity Board (CCB) pursuant to the Health Care Consent Act, 1996 for directions respecting her capacity to consent to treatment, and the wishes set out in her POAPC, and specifically the "end of life" provision. The doctor took the position that the patient was not capable of consenting to treatment, she had no reasonable expectation of recovery, and that her treatment constituted both artificial and heroic measures which were contrary to the patient's prior capable wishes and therefore should be discontinued.

The patient's children argued that the treatment should continue. They testified that their mother had strong Orthodox Jewish religious beliefs, which included the belief that all medical interventions to prolong life must be performed unless suffering extreme pain. The patient's Rabbi gave evidence at the CCB corroborating the children's testimony. The children argued that their mother must not have understood the "end of life" provision when she executed her POAPC as she would never have agreed to a clause that directly conflicted with her strong religious beliefs.

The lawyer who drafted the POAPC is a specialist in the area of trusts and estates. She testified at the CCB hearing she had no specific recollection of discussing the POAPC with her client and had no specific notes in her file about the "end of life" clause. Instead, the drafting lawyer spoke to her "general practice" of completing a clause-by-clause review of such documents with her clients. Her practice was to explain the "end of life" clause as an "expression of wishes", yet advised her clients to speak to a health practitioner about "extreme measures". The evidence also showed that the primary reason for the meeting was for the client to revise her will and not specifically to execute a POAPC. Finally, the "end of life" clause was simply the drafting lawyer's firm boilerplate clause that was presented to every client without specific prior instruction. The drafting lawyer also testified that she would not have discussed religion with her client and there were no notes in her file about her client's Orthodox Jewish faith. 

The CCB found that the patient's intentions and wishes as contained in the POAPC were clear and unambiguous and that she knew and approved of its contents including the "end of life" provision. The CCB placed significant weight on the testimony of the drafting solicitor regarding her usual practice of completing a clause-by-clause review.

On appeal however, the Ontario Superior Court’s Justice Carole Brown disagreed with the CCB's findings. Relying on Babulov v. Cirone, the Court considered whether evidence existed to rebut the presumption that the client knew and approved of the contents of the POAPC. The Court concluded on the evidence that the "end of life" clause was contrary to the patient's orthodox beliefs; it had not been adequately explained to the client; the lawyer's general practice testimony was not corroborated by her notes and, the client had language comprehension difficulties.

Warning for Drafting Solicitors

It is clear from this decision that a POAPC should not merely be a simple add-on to an estate plan. The lawyer testified that she did what most diligent lawyers would do in a similar situation: a clause-by-clause explanation and review of the provisions of the POAPC. Arguably, the Court was of the view that she could have done more. The question is however, how much more? Should general practice include a question about religious and medical beliefs? Should boilerplate language be avoided and all "end of life" clauses specifically tailored to each client? The duty of care for lawyers drafting, advising and taking instructions on POAPCs may be held to a higher standard in the future given that there is likely to be many more cases like this before our Courts.  

About the Author

Kimberly Whaley is the founder and principal of Whaley Estate Litigation.