Readiness Planning for Physician Assisted Suicide

Since the last time the Supreme Court of Canada (SCC) visited the issue in Rodriguez (1993), doctor-assisted suicide has been legalized in eight other countries around the world.  

As a result of the recent landmark SCC ruling in Carter v. Canada, Canada will soon join that list of countries, which includes Switzerland, Germany, Belgium, Japan and the U.S. states of Washington and Oregon. The question remains: how will this affect life insurance policies and estate planning activities here? Specifically, the Supreme Court of Canada (SCC) struck down s. 241(b) of the Criminal Code (the provision prohibiting assisted suicide) as unconstitutional as it pertains to physicians and their patients. The ruling was made Feb 6, 2015. It takes effect Feb 6, 2016 in order to allow the legislatures to respond.

The Court held that the prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice.

When legislation is struck down as being unconstitutional, the Court generally provides the legislature with time to remedy the impugned provisions. In this case the Court has given the federal and provincial governments 12 months to implement legislation in response. Therefore, doctor-assisted suicide will not be legal until February 6, 2016.

While there is no way to know exactly what the new legislation will look like, the SCC commented on some issues that the legislature will more than likely adopt. Therefore, we can speculate with mixed certainty as to how the new ruling might affect end of life estate planning, a topic of discussion in the Distinguished Advisor Workshops being held this June 17 in Winnipeg, June 18 in Calgary, June 19 in Vancouver and June 22 in Toronto by Knowledge Bureau and it’s team of professional instructors.

Of interest in this regard is that the Court stated that the choice to die could not be delegated to a power of attorney or a guardian. Also, it is explicitly stated in the decision of the SCC that people can only decide to commit suicide after they have fallen ill, therefore precluding any sort of advanced directive.

The affect that the new laws will have on life insurance policies will be interesting to observe. Most life insurance policies contain a clause that states that the policy will be null and void if there is a suicide within a certain amount of time after entering into the policy. Will life insurance providers be revising their policies to include physician-assisted death under the definition of suicide so as to nullify any benefit to the designated recipient?

The new laws could drastically affect estate and tax planning and will change the conversations tax and financial advisors have with their clients on the matter. Removing the main variable in the equation, time of death, could provide for a myriad of estate planning initiatives.

For example, once it becomes certain that one spouse is going to predecease the other, probate could be avoided by moving all assets out of that spouse's name prior to death. Alternatively, they could transfer all of the unlucky spouse's assets into a trust that will provide benefits for the survivor and eventual distribution amongst other family members.

Greer Jacks is a lawyer at Crease Harman LLP, Barristers and Solicitors.

We hope you will join the discussion leaders on personal, financial, trust and estate planning at the Distinguished Advisor Workshops: Evelyn Jacks, David Christianson, Greer Jacks and Elise Pulver.