Be Prepared For Incapacity

Planning for the possibility of incapacity is not on everyone’s list, but it should be. People are living longer and not necessarily in good health. The family demographics of an aging population, fewer children, more divorces and increasing blended families raise issues and concerns for anyone deciding the question “Who will make decisions when I no longer can?”.

In British Columbia there are seven legislative Acts that deal in some way with issues of incapacity, health care, mental health, abuse and neglect and all aspects of adult guardianship. The Power of Attorney Act and the Representation Agreement Act set out ways in which a person can plan in advance for their legal and financial care and health care respectively by making an Enduring Power of Attorney or a Representation Agreement. Under the Health Care (Consent) and Care Facility (Admission) Act it is also possible to do an Advance Directive for Health Care which provides direct instructions to health care providers in specific circumstances.

This article will deal primarily with Enduring Powers of Attorney and Representation Agreements. These documents allow you to choose who will have your legal authority to make decisions about your health care and your legal and financial matters, usually in a circumstance where you no longer have legal capacity to decide for yourself. Both documents must be made while you are legally competent. And each document can set out the extent of the authority you are granting. You should be aware that the Power of Attorney Act substantially changed and was updated in September 2011, so even if you have a pre-existing Power of Attorney (which has been grandfathered), it may be useful to have it reviewed. The new Act allows for a more complex document and imposes duties and obligations on whoever acts as Attorney, which may be important and useful to you in the context of your own family requirements. The new Act also prohibits certain persons from acting as an Attorney.

A Representation Agreement deals only with health issues and allows you to appoint a healthcare Representative. You can name family members or someone un-related to you to act as Representatives. You can set out the specific or general limits of the health care authority. You can outline specific treatment choices in circumstances where you are terminally ill or there is no reasonable prospect of recovery. The person you appoint is required to follow your known wishes and beliefs. And you can specify when the Agreement is to come in to effect. In the absence of a Representation Agreement, the Health Care (Consent) Act mentioned previously sets out those persons qualified to act as temporary substitute decision makers to provide consent to your treatment if you are unable to do so.

In cases of permanent incapacity, if there is no Enduring Power of Attorney or Representation Agreement, it may be necessary for someone to apply to the Supreme Court for an Order appointing them your Committee in order to deal with your property and person.

The benefits of having pre-planned for your possible incapacity cannot be understated. Your age and medical condition should not determine when you proceed. Knowing you have considered and put in place basic documents to cover your incapacity, will be a comfort and assurance to you and your loved ones.

This article is not legal advice and is general in nature. You should consult a lawyer at Mair Jensen Blair LLP to discuss your specific situation.