Many Powers of Attorney contain a variation of the “no heroic measures” clause. This clause is used to cease treatment when there is no reasonable likelihood of recovery from a terminal illness. This clause is often inserted with little care by the drafting lawyer and skimmed over by the client with only a quick reference to the paragraph. In many cases, the paragraph is automatically inserted by the software the lawyer uses without a direct prompt to do so. In turn this paragraph has become part of the default language used in POAs and clients often fail to pay close attention to the paragraph. However, the case Friedberg et al vs. Korn shows why both clients and drafting lawyers should carefully consider the no heroic measures clause.
In the case of Friedberg et al vs. Korn, the Consent and Capacity Board authorized withdrawing treatment from Ms. Friedberg against her children's’ protests. The three children successfully argued on appeal to the ONSC that their mother did not adequately understand the “No heroic measures” clause in her Power of Attorney and therefore did not consent to the withdrawal of treatment.
This decision emphasizes the need for lawyers and clients to take time to understand the clauses inserted into a power of attorney, especially those that dictate end of life care and withdrawal of treatment. How can lawyers and clients ensure that end of life instructions are appropriately drafted and followed? The reality is we can edit the "no heroic measures" clause or add additional paragraphs to provide tailored instructions. The process starts with asking yourself some questions:
How do I feel about being in a vegetative state? How do I feel about taking medication to fight a terminal illness? What are the circumstances in which I would want treatment to cease? Is there anyone I should discuss my views with (children, doctors, religious authorities etc.)? Do my substitute decision makers know my views?
Once you have reviewed your thoughts on end of life care, go through any instructions you wish to leave in your power of attorney with your lawyer carefully. Make sure they document your wishes in the POA and that their notes include reference to the discussion you had with your lawyer. Once you have the POA drafted, talk to your loved ones and substitute decision makers. Make sure they know your wishes and are willing to act on them. Your substitute decision maker should understand and be willing to advocate for your wishes. If you take the right steps in drafting your POA, you can rest assured that you will be treated with dignity and with respect to your wishes in end of life care.