HEALTH AND CARE DECISIONS:
PLANNING FOR INCAPACITY

Submitted by John Coupar, B.A., LL.B,
Horne Coupar Barristers & Solicitors

Have you ever considered the possibility that a day may arrive when you are unable to make decisions about your own day-to-day living? Who will decide where you live, the food you eat, and answer the doctor's questions? If you are incapacitated through accident or illness, do you have someone in place who can assist?

Just as we plan for death by signing a will, we can now plan for incapacity before it arrives. In February of 2000, our government gave us the Representation Agreement Act, which allows us to legally appoint an individual(s) to assist with decisions concerning health and personal care if we are ill in the future. The appointment of such a representative is made in a document called a Representation Agreement. Before this, there was little room to plan for ill health. Those who were available to assist often had to apply to become a court ordered committee - a time consuming and costly legal process. That has all changed for the better.

A Representation Agreement allows for almost any kind of decision regarding personal and health care, including the decision to be allowed to die. Although it can also include financial powers, the Representation Agreement will likely soon be restricted to health and personal care. In order to sign such an authority, you must be at least 19, and have requisite mental capacity. You can appoint one or several representatives, including a back-up representative. Most choose family or friends - typically a spouse and children.

The document is prepared and executed with the assistance of a lawyer (a restricted version can be prepared and signed without a lawyer). The representative(s) must also sign the document. Once signed, it remains in place, to be used in the future only if the need arises. For safety reasons, the document can spell out the only times when the document can be used, or it can be left in the hands of trusted individuals who will release it only when certain conditions are met. In any case, the authority is usually not activated without the advice of family doctors.

Words of caution! If you feel you have health and personal care coverage through an existing power of attorney or living will, you do not. A power of attorney does not give your attorney any legal power in relation to your health and care - it is an authority for financial matters only. And your living will is not converted into a Representation Agreement as a result of the new law, and is usually limited to end of life decisions rather than ongoing health and care matters. Although a living will must be respected in law in cases where death is imminent, it does not appoint representative and only addresses a small fraction of the health and care issues that a Representation Agreement addresses.

If you wish to sign a Representation Agreement, start by speaking to your family, friends, and doctor. Next, contact your lawyer. You should sign a "general” Representation Agreement, which requires lawyer assistance, and covers virtually all health and care, and financial decisions. A "restricted” Representation Agreement does not require lawyer assistance, but does not allow for the full ambit of health, care and financial decisions; it is generally used only when an adult has already reached a state of diminished capacity and cannot sign the general agreement. Because the law has not created a mandatory form of Representation Agreement, you will find different versions of them. If you are not seeking help from your lawyer, start by contacting the office of the Public Guardian and Trustee (604-660-4444), or Nidus eRegistry (604-408-7414), or their web sites, for more information on the restricted agreement.

In the end, planning for incapacity is a choice, not a necessity. However, it only makes sense. The process is simple and inexpensive, and provides great certainty for those who might be called upon to assist. Most importantly, it gives you the comfort of knowing that you have planned ahead, and the peace of mind that comes with it!