Assisted Death in Canada

Since its legalization in June 2016, Medical Assistance in Dying (“MAID”) has become a rapidly evolving and increasingly relevant topic for incapacity and estate planning. While Canadian law currently permits eligible adults to access MAID services, the ability to make an advanced request for MAID in anticipation of a future loss of capacity is currently only available to Quebec residents.

This article provides a brief introduction to advance requests for MAID, its legislative development within Quebec, and its current implications for incapacity and estate planning in other jurisdictions.

What is an Advance MAID Request?

An advance MAID request allows an individual to identify a particular symptom or medical outcome caused by their illness that will trigger a request for MAID on their behalf, if they are no longer able to give consent. Advance requests for MAID are typically sought by individuals diagnosed with progressive conditions resulting in a loss of capacity, such as Alzheimer’s disease or other forms of dementia. Outcomes commonly identified include the loss of communication, mobility, cognitive function, or independence.

Advance requests for MAID should not be confused with advance medical directives – which are available in all provinces and territories – and allow individuals to refuse certain medical treatments after a loss of capacity (e.g. mechanical ventilation), or Waivers of Final Consent, which permit an already-approved MAID applicant to waive the need for final consent immediately before MAID is provided.

Advance MAID Requests in Quebec

Advance requests for MAID have been available in Quebec since 2024, following the enactment of Bill 11. This legislation amended the provincial Act Respecting End-of-Life Care, to allow capable adults diagnosed with a ‘grievous and irremediable’ medical condition to make an advance request for MAID services in the event they lose capacity. Currently, Quebec is the only Canadian jurisdiction with legislation authorizing advance requests for MAID.

Public discourse in Quebec prior to the enactment of Bill 11 was influenced by a number of well-publicized cases. Among the most prominent was the case of Sandra Demontigny, whose 2020 memoirs described her challenges with accessing MAID after being diagnosed with early-onset Alzheimer’s disease at ago 38. The issue subsequently received further attention in Quebec’s 2021 Special Commission on the Evolution of the Act Respecting End-of-Life Care,  which found widespread public support for expanding access to MAID to include advance requests.

Under the Act Respecting End-of-Life Care, a capable adult suffering from a serious and incurable illness must work with a healthcare professional to complete a prescribed form identifying what future symptoms of their illness will trigger the review of their advance request. The individual must also name a ‘trusted person’, whose role is to notify healthcare when they believe the threshold identified in the advance request identifies has been met.

Before MAID services can be provided, competent healthcare professionals must determine whether the statutory criteria are met in the circumstances. This includes obtaining an independent second opinion to confirm the presence of the identified symptoms. If behavioral symptoms are present, the healthcare professionals must consider the possibility the individual could be refusing MAID.

Overall, Quebec’s recognition of advance requests for MAID represents a significant development in the legal status of previously expressed healthcare wishes in the context of incapacity and end-of-life planning

MAID and Incapacity Documents

While advance healthcare planning remains an important component of incapacity planning throughout Canada, no other provinces currently recognize the validity of an advance request for MAID after a loss of capacity. In these jurisdictions the provisions of an advance directive, will, or any other documents is legally unable to authorize a third party to initiate or approve an application for MAID on behalf of an individual who can no longer manage their affairs.

For this reason, individuals who have concerns regarding future incapacity should ensure they understand the limits of their current provincial legislation when discussing end-of-life planning with their legal and medical advisors.

Should MAID Wishes Be Included in Estate Planning?

Due to the evolving nature of the law surrounding incapacity and previously expressed healthcare decisions, some advocates suggest including a statement of MAID wishes as part of the incapacity planning documents. While statements of this nature may help communicate an individuals values and preferences regarding end-of-life care, unless the law changes they remain a legally unenforceable contingency.

Care should therefore be taken when drafting, to avoid impossible or illegal instructions, which may complicate the substitute decision maker’s role and increase the risk of disputes. The document should clearly acknowledge the current state of the law regarding MAID access and the non-binding nature of the wishes.

The Future of Advance Requests for MAID

While Quebec’s legislative framework may influence future legal documents in MAID reform, advance requests for MAID remain unavailable elsewhere in Canada. Careful incapacity planning, together with the straightforward communication of an individual’s values and wishes, therefore remains the best way to prepare for future health care decisions.

If you have questions regarding incapacity planning, representation agreements, or end-of-life planning, we would be pleased to assist you.