Alzheimer’s Patient Lost Right-to-Die Despite Expressed Wishes

Today, BC Court of Appeal dismissed the appeal brought by the family of Margaret Anne Bentley, a patient at the final stage of Alzheimer’s disease. My colleague Amy Mortimore posted a blog when the family of Mrs. Bentley commended the lawsuit in August 2013, and Areet Kaila posted a blog when the BC Supreme Court released its decision in February 2014.

In 1991, Mrs. Bentley signed a “statement of wishes” in which she asked that she be allowed to die should she suffer from an extreme disability with no expectation of recovery and that she not be provided with nourishment or liquids. In another undated “statement of wishes” purportedly to have been signed by Mrs. Bentley as well, she asked that she be allowed to die and not be kept alive by artificial means such as life support systems, tube feeding, antibiotics , resuscitation or blood transfusions. She also indicated in this undated document that she would accept basic care and request aggressive palliative care, drugs, or any other measures to keep her from pain or distress.

In 1999, Mrs. Bentley was diagnosed with Alzheimer’s disease. By 2013, Mrs. Bentley lost her ability to make physical movement, and had not spoken since 2010. She did not recognize her family members or any other person.

In 2013, Mrs. Bentley’s family commenced the lawsuit seeking, amongst other things, a declaration that Mrs. Bentley not be given nourishment or liquids. The family asserted that Mrs. Bentley expressed strong wishes while she was mentally capable that she did not want to be given nourishment or liquids in her current condition.

The Respondents, the care home in which Mrs. Bentley stayed and Fraser Health Authority, maintained the position that despite the advanced stage of her illness, Mrs. Bentley chose to open her mouth and eat, and this choice must be respected. The Respondents argued that to refuse to offer food and liquids would constitute neglect under the Adult Guardianship Act.

The lawsuit was heard in December 2013, and by Reasons for Judgment released in February 2014, the BC Supreme Court held that there is a distinction between health care and personal care. The Health Care (Consent) and Care Facility (Admission) Act makes it clear that health care must not be provided without obtaining consent, but offering food on a spoon is personal care to which Mrs. Bentley is capable of consenting through her behavior, by opening her mouth for food and liquids. The Supreme Court held that British Columbia legislature did not intend to allow reference to previously expressed wishes to be relied on to refuse basic personal care that is necessary to preserve life.

The family of Mrs. Bentley appealed the decision of the BC Supreme Court. By Judgment released today, the Court of Appeal upheld the lower court’s decision.

Managing digital assets – Preserving your social media legacy

In our 2013 article “Dealing with Digital Assets in an Estate”, we discussed the importance of identifying, cataloguing, and planning for your digital assets, an often overlooked aspect of estate planning. In broad terms, “digital assets” include all of the electronic possessions an individual may have. A recent survey conducted by McAfee revealed that the average Canadian values his or her digital assets at more than $32,000! Such digital assets include music downloads, e-books, text messages, videos, emails and social media accounts, such as Facebook. The latter is the focus of this article.

Over the last decade, Facebook has become massively popular with users of all ages. Approximately 19 million Canadians, more than half of the population, have an active Facebook account. Users use the site as a platform for sharing numerous photographs, personal messages, and other personal information with their social network. A Facebook account often reveals intimate details of the account holder’s identity. But what happens with all this personal information after the user’s death? Until recently, Facebook offered to either delete or “memorialize” the user’s account upon request from the personal representative or a family member. Memorialized accounts can be viewed by friends, but cannot be managed or altered in any way. Recent changes to Facebook’s account management policy now give users a way to control their profiles after death by appointing a “legacy contact”.

Once Facebook is notified of the account holder’s death, the legacy contact can:

  • download a copy of all personal data shared on Facebook (including photographs, videos, wall posts, and profile information);
  • write on the Facebook profile to share a remembrance or final message on behalf of the deceased user;
  • respond to new friend requests on behalf of the deceased user; and
  • update the deceased user’s profile picture and cover photograph.

To protect the privacy of the decedent, Facebook does not allow the legacy contact to:

  • log in as the deceased user;
  • change what is already posted on the profile (for example, the legacy contact cannot delete photographs or profile updates);
  • read or download private messages; or
  • delete the account.

Designating a legacy contact is optional, and if a person passes away and no legacy contact is chosen, Facebook will continue with their current memorialization process. Alternatively, Facebook also gives users the option of requesting that their account be permanently deleted after their death. Facebook’s “legacy contact” feature is currently only available in the U.S., however, it is expected to soon be made available in Canada.

Other tech companies offer similar posthumous account management options. For example, in 2013, Google introduced “Inactive Account Manager”, a service that lets users decide what will happen to their Gmail messages and data from other Google services after a certain period of inactivity.

As most Canadians today have a digital presence, estate planning for digital assets is critical to preserving the privacy and personal history of a decedent. Facebook’s “legacy contact” feature, and other services like it, provides users with a meaningful way of controlling personal data after death. However, such services are only useful to the extent that users take advantage of them. It is important to consider digital asset management as part of your overall estate planning strategy to ensure that no part of your legacy is forgotten.

BC Court Developing Law on When a Document is a “Will”

As I wrote in an earlier blog, section 58 of  WESA now gives the Court the power to order that a document that does not meet the formal requirements of a Will is nevertheless effective as a Will.  This power is called a “dispensing power”.  Last week, the Court exercised this dispensing power again, but on very different facts from those in our earlier blog.  In the latest decision (the Estate of Young), there was in fact a properly executed Will, which was not in question in the application.  However, there were also two separate documents which could arguably be seen as testamentary in nature.  The Executor properly sought directions from the Court.  In the Estate of Young decision, the Court found that only one of the documents met the necessary threshold to be fully effective as though it was part of the Will.  The second document did not meet the threshold and, accordingly, had no effect.

From the two cases decided to date under WESA, we can take the following lessons:

  •  The starting point is the George v. Daily decision from the Manitoba Court of Appeal.  This is not surprising.  Manitoba Courts have had a similar dispensing power since the 1990s.  The Manitoba Court of Appeal wrote a comprehensive decision tracing the reasons that Wills legislation has traditionally required certain formalities be met, considering similar legislation in Australia (where it has been in place since the 1970s), and identifying the threshold that must be met in order for a document to be effective as a Will.  Other Canadian provinces have used George v. Daily as a starting point when their legislatures gave a dispensing power to their Courts.
  • The key question in BC is the same as in Manitoba: whether the document expresses the deceased’s “deliberate or fixed and final expression of intention as to the disposal of his/her property on death”.
  • The concern that the dispensing provision will become a “rubber stamping” by the Courts of non-testamentary documents to be recognized as Wills is met with the Court’s careful review of the facts and the law.  In fact, in the second decision, the Court held that one of the documents did not have testamentary effect.
  • Each application under section 58 will turn on the unique facts.
  • The burden of proof on such an application is the civil standard (balance of probabilities), as opposed to the higher standard in criminal law (beyond a reasonable doubt).  This finding is consistent with the British Columbia Law Institute recommendation in its report “Wills, Estates and Succession: A Modern Legal Framework”  Note that this differs from certain of the statutes in Australia, which require that the higher, criminal standard be met in order for a document to be effective as a Will.
  • The existence of a signature on the document is a compelling factor.  It not only helps to establish authenticity of a document, but signing a document demonstrates approval of the contents and finality of intention.

In the Estate of Young, the Court also noted that section 58 may be used only to cure deficiencies in the execution of the document; it is not used to cure testamentary incapacity or undue influence.

I expect that we will see further applications under section 58 as we approach the first anniversary of WESA.  I am aware that a few of my colleagues in the Estate bar are currently preparing such applications, and am interested in seeing what unique to BC nuances develop in this fascinating new power provided to our Courts.  Stay tuned…