Are Halachic Powers of Attorney for Personal Care Binding in Ontario?

1. Are Halachic Powers of Attorney for Personal Care Binding in Ontario? Are doctors bound to follow the attorney’s directions? Authors: Charles B. Wagner, partner, is certified by the Law Society of Upper Canada as a specialist in Estates and Trusts. Brendan Donovan is an associate and Wagner Sidlofsky LLP

2. End of Life Issues from Jewish Perspective • Rabbi J. David Bleich- key points: • man does not possess absolute title to his life or his body • he is charged with preserving, dignifying and hallowing that life • when falling victim to illness or disease, he is obliged to seek a cure in order to sustain life • the category of pikuachnefesh (preservation of life) extends to human life of every description, including a person in a so-called vegetative state • the mitzvah of saving a life is neither enhanced nor diminished by virtue of the quality of the life preserved • Not easy decision: • story of Rabbi Yehuda (see Appendix A) • story of Choni Ha Maagal (see Appendix B)

3. Halachic powers of attorney:ask the Rabbi • Halacha governs all aspects of life and when confronted with questions Orthodox Jews seek rulings from their rabbis. • The Halachic POA sets out that end of life decisions must be made in accordance with halacha and designates a specific rabbi to be consulted by the attorney whenever an end of life issue arises.

4. Relevant Statutory Framework • Under subsection 46(1) of the Substitute Decisions Act, 1992 (SDA) a person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care. • Under section 1 of the Health Care Consent Act, 1996 (HCCA) the purposes of the legislation are, in part, to enhance the autonomy of persons for whom treatment is proposed “ … by allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services.”

5. Relevant Statutory Framework • HCCA paragraph 21(1)1: If the person [i.e., substitute decision-maker] knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish. • HCCA paragraph 21(1)2: If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests. • HCCA paragraph 21(2)(b):In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1).

6. Grover v. Grover • Mother expressed wish that she wanted everything medically and surgically possible to save and prolong her life, including heroic measures. • Mother suffered a number of strokes. After the third stroke, she became non-communicative and a quadriplegic. Mother was placed on life support measures to sustain her. • The doctors recommended that the patient be taken off the ventilator. They said it was in the patient’s best interests.

7. Grover v. Grover • The attorney refused. The matter was referred to the Consent and Capacity Board (CCB), which ordered her to consent. The attorney appealed to court. • Hockin J. • expressed wishes were made prior to the devastating brain-stem stroke • never any discussion with respect to paralysis or what should take place if Mother became a quadriplegic • section 21 of HCCA: since Mother did not express a wish applicable to the circumstances, best interests applied • pull the plug

8. Scardoniv. Hawryluck • Doctors opposed use of a ventilator and inotropic drugs. • Doctors believed that there is no chance to prevent further deterioration from Alzheimer’s and therefore not in her best interests. • Mrs. Holland always said “where there is life there is hope” and her daughters refused to pull the plug. • Pursuant to section 37 of the HCCA, the doctors applied to the CCB for direction on the basis that the daughters did not comply with section 21. • CCB directed daughters to follow the advice of the doctor. The daughters appealed. Cullity J. allowed the appeal and set aside the decision of the CCB.

9. Scardoniv. Hawryluck • Central to the Scardoni case was the question whether the wishes of Mrs. Holland were applicable to her circumstances. It may be helpful to first review the relevant provision. • Paragraph 21(2)(b): In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1). • Cullity J. found that even though Mrs. Holland may not have contemplated her specific circumstances, her belief that “where there is life there is hope” needed to be taken into consideration in determining her best interests.

10. Problems with Enforcing Halachic Powers of Attorney • Scardoni and Grover cases demonstrate that if a doctor disagrees with the attorney, the matter will go to the CCB and a “bests interests” test will apply. • This will be no different if it is a rabbi who makes the decision! • Other problem: Halachic powers of attorney delegate. An attorney is a fiduciary and it is a breach of fiduciary duty to delegate.

11. Is Referring a Question to a Rabbi a Breach of Fiduciary Duty? • A fiduciary is not permitted to delegate the authority with which he/she has been entrusted. • If the attorney for personal care is a fiduciary, then does the direction to the attorney to “consult and follow” constitute a delegation of fiduciary duty? • If so, does the requirement invalidate the halachicpower of attorney?

12. The Protector • Case of Re Rogers reviewed the validity and enforced an express clause in the trust instrument that granted the trustee authority to delegate a particular power. • The case also set out the conditions under which the trustee’s position could be delegated. In D. Waters, Law of Trusts in Canada the learned professor points out that the modern description of such as person is a “protector” who owes a fiduciary duty of loyalty. • Professor Waters further points out some of the issues to be considered in regards to the naming of a Protector: • Successor Must Be Named. Should the named protector (in our scenario the rabbi) predecease the grantor of the attorney, then there can be no successor unless “...the instrument gives the personal power to some other person in the circumstances that have happened...” (Both the precedents being reviewed comply with this requirement.)

13. Conclusion • Scardoni and Grover both stand for the proposition that a power of attorney for personal care may be too unspecific to future circumstances to be binding. • “Best interests” as understood by the CCB will override a general statement of wishes • While section 21 of the HCCA mandates: • the CCB to consider the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable… • it is but one factor

14. Conclusion • Scardoni and Grover demonstrate that quality of life is a relevant factor the CCB takes into account when measuring best interests. • This may trump enforcement of a Halachic power of attorney.

15. Precedent Halachic Living Will • Prepared by Augdath Israel of America https://hods.org/pdf/Living%20Will%20Agudath%20Israel.pdf • Prepared by Rabbinical Council of America http://www.hods.org/pdf/Living%20Will%20RCA.pdf

16. Relevant Readings • Jewish Law and the Living Will: http://canadian-lawyers.ca/Understand-Your-Legal-Issue/Wills-Estates-and-Trusts/Wills-and-Probate/Jewish-Law-and-the-Living-Will.html • C. Wagner and B. Porat, “End-of-life decision making: Rasouli appeal to be heard by Supreme Court of Canada” (2012), 78 E.T.R. (3d) 180 - http://www.wagnersidlofsky.com/pdf/end-of-life-decision-making.pdf

17. Selected Case Law • Scardoni v. Hawryluck (2004), 69 O.R. (3d) 700 (Ont. S.C.J.) • Grover v. Grover, 2009 CarswellOnt 1944 (Ont. S.C.J.) • Rogers, Re (1928), 63 O.L.R. 180, [1929] 1 D.L.R. 116 (Ont. H.C.) • Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2013 CarswellOnt 14113 (S.C.C.) (anyone interested in end of life issues should review this decision) • CA 506/88 Shefer v. State of Israel, PD 48(1) 87, 167 (1994)

18. Appendix A: Rabbi Yehuda On the day when Rabbi died the Rabbis decreed a public fast and offered prayers for heavenly mercy. Furthermore, they announced that whoever said that Rabbi was dead would be stabbed with a sword. Rabbi's handmaid ascended the roof and prayed: ‘The immortals desire Rabbi [to join them] and the mortals desire Rabbi [to remain with them]; may it be the will [of God] that the mortals may overpower the immortals’. When, however, she saw how often he resorted to the privy, painfully taking off his tefillin and putting them on again, she prayed: ‘May it be the will [of the Almighty] that the immortals may overpower the mortals.’ As the Rabbis incessantly continued their prayers for [heavenly] mercy she took up a jar and threw it down from the roof to the ground. [For a moment] they ceased praying and the soul of Rabbi departed to its eternal rest. ‘Go’, said the Rabbis to Bar Kappara, ‘and investigate’. He went and, finding that [Rabbi] was dead, he tore his cloak and turned the tear backwards. Talmud – Ketuvot 104a

19. Appendix: Choni Ha Magal R. Johanan said: This righteous man [Choni] was throughout the whole of his life troubled about the meaning of the verse, A Song of Ascents, When the Lord brought back those that returned to Zion, we were like unto them that dream. Is it possible for a man to dream continuously for seventy years? One day he was journeying on the road and he saw a man planting a carob tree; he asked him, How long does it take [for this tree] to bear fruit? The man replied: Seventy years. He then further asked him: Are you certain that you will live another seventy years? The man replied: I found [ready grown] carob trees in the world; as my forefathers planted these for me so I too plant these for my children. Chonisat down to have a meal and sleep overcame him. As he slept a rocky formation enclosed upon him which hid him from sight and he continued to sleep for seventy years. When he awoke he saw a man gathering the fruit of the carob tree and he asked him, Are you the man who planted the tree? The man replied: I am his grandson. Thereupon he exclaimed: It is clear that I slept for seventy years. He then caught sight of his ass who had given birth to several generations of mules; and he returned home. He there enquired, Is the son of Chonithe Circle-Drawer still alive? The people answered him, His son is no more, but his grandson is still living. Thereupon he said to them: I am Chonithe Circle-Drawer, but no one would believe him. He then repaired to the Beth Hamidrash and there he overheard the scholars say, The law is as clear to us as in the days of Chonithe Circle-Drawer, for whenever he came to the Beth Hamidrash he would settle for the scholars any difficulty that they had. Whereupon he called out, I am he; but the scholars would not believe him nor did they give him the honour due to him. This hurt him greatly and he prayed [for death] and he died. Raba said: Hence the saying, Either companionship or death. Talmud – Mas. Ta’anith 2a