• The individual must be at least 18 years old, mentally competent (i.e., you are capable of making decisions about your health), and eligible for provincial or federal health services.
• The individual must have what the legislation calls a “grievous and irremediable” medical condition. There are three elements to that, all of which must be met: the condition must be serious and incurable, it must cause intolerable suffering (enduring physical or psychological suffering), and the individual must be in an advanced state of irreversible decline in capacity. Note that the condition does not have to be terminal or fatal, but it does have to be serious, irreversible and causing intolerable suffering.
• A request for MAID must be made voluntarily, without outside pressure or influence. In other words, the decision to apply for assisted dying must be the individual’s own choice—they can’t be “talked into it,” and no one else can make the decision for them.

What about mental illnesses? As it stands, an individual whose only medical condition is a mental illness is not eligible for MAID, but that is due to change in March 2027. As well, people with a mental illness along with other medical conditions may be eligible now, if all the above criteria are met.

The complexities of consent

That third criteria – that the election for assisted dying must be made voluntarily – is something people planning for end-of-life and their families should pay close attention to. The legislation is very explicit about what does and does not qualify as consent, and it applies three basic criteria.

• First, the law stipulates that consent has to be informed—made after consultation with a medical practitioner, and after the individual has been made aware of all the other available means to relieve their suffering, such as palliative care.
• The consent must be contemporaneous, which means the individual must be able to give informed consent both at the time of their request for MAID and immediately before receiving MAID. So, there are two particularly important tests of consent here, one at the time of request and one before assistance in dying. (The latter, final consent may be waived under extraordinary circumstances, for instance when a natural death is reasonably foreseeable and the person’s capacity to give consent is at risk, but this is a narrow exception to the rule.)
• Finally, an individual who has been approved for MAID has the right to withdraw consent at any time and in any manner.

What it means for estate planning

First, let’s address the financial impact of MAID on the estate, because that is the simplest to answer. Approved assisted-dying services – including consultations with medical practitioners and the procedure itself – are fully covered by provincial or federal health care insurance plans. As well, while life insurance benefits may not be paid out if the insured individual died by suicide, they generally are payable in the case of MAID. Note that insurers may still legally contest the benefit payout, for instance if there is evidence the application for MAID was done under false pretenses.

The legal ramifications of MAID on powers of attorney and delegation of decision-making are a bit more complicated. Along with a will and power of attorney for property, estate planning typically includes delegating power of attorney for care – that is, someone who can make decisions regarding your health when you are no longer able to make them yourself. But with MAID, decision-making authority cannot legally be given to another person, because that would not conform to the law’s requirements regarding consent.

As well, advance requests are not allowed under MAID. For example, let’s say an individual who is concerned they may one day suffer from dementia, but who still has decision-making capacity, makes an advance request that their family (or some other delegate) applies for MAID if they lose decision-making capacity in the future. That request would not qualify for approval under the current legislation because at the time it comes into effect (i.e., once the individual has lost the ability to make decisions), the criteria for mental competence would not be met, and you cannot apply for MAID on behalf of someone else as mentioned above.

As noted above, however, Canada’s MAID legislation is evolving, and its approach to advance requests may change in future. In 2023, the federal government launched a “national conversation” on advance requests, and a report on those public consultations is due later this year. So, even though advance requests are not allowed yet, those considering applying for MAID – or who would want their family or power of attorney to apply for assisted dying even when they are no longer capable of doing so – may still choose to include an advance request in a “letter of wishes.” A letter of wishes is a non-legally binding document that accompanies a will to give further guidance to executors, trustees and beneficiaries about your desires for before and after your death. It could ask your attorney for personal care to make an application for MAID on your behalf if the legislation changes sometime in the future to allow advance requests (assuming you meet the applicable eligibility criteria at the time).

MAID and family dynamics

Assisted dying is obviously a complex and deeply personal issue. Values, religious beliefs, and of course the state of one’s own health all come into play, but in general the law is designed to allow people the space – and the power – to make their own decisions. Yet it can add further complications to the already difficult transitions that death involves for the family.

When talking to families about wealth and estate planning, our bias is usually towards more communication rather than less. Decisions don’t have to be based on consensus, but in our experience they are best based on frank, open conversations between family members. We understand, however, that the subject of assisted dying might be difficult for some individuals to talk about. They might be reluctant to share their wishes out of concern that they will unnecessarily upset their loved ones or that family members might not approve – and might try to talk them out of it.

We certainly do not have any easy answers for this issue, because there aren’t any, but there is power in preparation. By fostering open dialogue, both within families and with a team of trusted advisors, we can help ensure that decisions made at life’s end reflect not only personal wishes, but also thoughtful financial and emotional planning. Awareness and communication are the first steps toward peace of mind, both for ourselves, and those we love.