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The role of the estate planning lawyer has greatly expanded over the last three decades with the advent in the 1990s in Ontario of modern legislation dealing with substitute decision-making, including powers of attorney for property and for personal care; see our updated Advisory on this.
Part of the planning for personal care involves providing guidance to your attorney for personal care who, under the Substitute Decisions Act, is legally obligated to carry out your wishes as long as it is possible to do so.
As a result, we are often involved in discussions with our clients on issues involving end-of-life decisions, including whether or not "heroic" or aggressive measures should be used, as well as their views on MAID.
MAID was legalized in Canada in 2016. To be eligible for MAID requires that a person be an adult, be capable of making decisions regarding their health, has a grievous and irremediable medical condition, makes a voluntary request for MAID, and gives an informed consent to receive MAID.
In 2023, the most recent year for which data is available, 15,343 Canadians used MAID provisions, representing about 4.7% of all deaths in Canada that year.
Three topical and controversial issues involving MAID include: advance requests, MAID for mental illness, and MAID for mature minors.
Advance Requests for MAID
Regarding advance requests, clients will frequently ask whether they can request MAID in advance should they later become incapable of giving consent to it, for example if they suffer from the early stages of dementia and are not able to give consent in the future to MAID.
Current Legal Position on Advance Requests for MAID
Under current federal law, you cannot make a legally binding advance request for MAID before you are eligible for MAID or wish to receive it, which would allow MAID to be administered in the future after you lose the capacity to consent if certain conditions specified in the request are met.
Federal Government National Conversation on Advance Requests
The federal government conducted a national conversation on advance requests from November 2024 to February 14, 2025. Health Canada is to publish a report on key findings this Fall.
An advance request, if legally binding, would allow persons with neurocognitive disorders such as dementia, Alzheimer's, Huntington's or Parkinson's to make a request for MAID that would be honoured later after they lose capacity.
Quebec Legislation on Advance Requests for MAID
On October 20, 2024, Quebec became the first Canadian jurisdiction to allow advance requests for serious and incurable illnesses leading to incapacity. Under its legislation, the consent must be made while a person is still capable of consenting to care and the person must have been diagnosed with the illness. The request cannot be made in case they get a diagnosis in future.
The person must talk with a health or social services professional who agrees to assist in completing the request using a form only available from a physician or a specialized nurse practitioner. They may also designate one or two "trusted third person(s)" whose role is to ensure the person's wishes are known and respected and that health and social services professionals are aware of the advance request and that they advise them when certain situations arise.
As well, the person must set out symptoms and clinical manifestations which express their consent to receive MAID when they have become incapable of consenting to care. There is also a process for withdrawal of an advance request. There are a number of criteria that must be met before MAID can be obtained. The federal government has taken the position to not challenge the Quebec legislation providing for advance requests.
It is important to understand that an advance request for MAID is different from a personal care directive or letter of wishes to your attorney for personal care outlining your wishes for end-of-life care.
Public Support for MAID and Advance Requests
A recent Ipsos poll from March 2025 found high support for MAID in Canada of 85% and that 84% of people across Canada support advance requests for MAID for a person who has a diagnosis of a grievous and irremediable medical condition that will eventually cause them the inability to make decisions. As well, 72% support advance requests for MAID for patients who are competent when a request is made even if they are not diagnosed with such a condition.
The issue of advance requests, however, is controversial, and there is opposition to advance requests on several bases.
Other jurisdictions in addition to Quebec that allow advance requests for MAID are the Netherlands, Spain, Colombia, Luxembourg, and Belgium.
It will be interesting to see the report on advance requests to soon be issued by Health Canada and the direction the government will take on the challenging issue of advance requests. Stay tuned.
Margaret has been an expert columnist for Advisor.ca and Advisor's Edge magazine since 2011. You may read her columns here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
