1. Power of Attorney
2. Representation Agreement
3. Health Care Statement – Advance Directive or Instructions
On September 1, 2011 new laws were passed in relation to the above personal planning tools. While the Power of Attorney has been available to British Columbians for some time Representation Agreements have been in use since 2000. BC Notaries can prepare all of these documents including wills. Having these personal planning documents in place will allow you to make your own choices with regard to your finances and health care and as to who will help you ensure that your wishes are met. Preplanning gives you the right to decide who will look after you and your assets thus avoiding delays in the provision of health care, costly Court proceedings and intervention by the BC Public Guardian and Trustee.
THE POWER OF ATTORNEY
An Adult 19 years or older can appoint another adult as their “Attorney” under a Power of Attorney (POA). The updated POA Act is much more detailed and has clarified some issues that have been ambiguous over time, for example:
1.The POA is for financial and legal matters only (except the making of a will) – it cannot be used for health care or medica l decisions or allow the Attorney to “place an adult in a home”;
2. The POA can be in effect at the time of signing or at a later date defined in the POA document (a triggering event);
3. The Act provides a comprehensive guide as to the duties and responsibilities of the Attorney including the Attorney’s requirement to keep records and how an Attorney may resign;
4. The POA Act defines the mental capacity required to make a POA – an Adult must have full mental capacity to sign a POA. There are 3 types of POA: Specific, General and Enduring. An adult may sign a Specific POA for a specific reason, ie. selling a house or for a specified time limit, ie. for a one year period while away on a trip. Mo st POAs are General and are also Enduring which means that if the Adult becomes mentally incapacitated then the Attorney can continue to act for the Adult. This is usually why most POAs are prepared – in case someone becomes incapacitated due to an accident, stroke or other illness. It must be stressed, however, that while an Adult is still capable they are able to continue to look after their own affairs as a POA it is not an ”all or nothing” thing if the Adult is capable of expressing their wishes. The POA can also be revoked or changed any time while the Adult is capable.
This document is an extremely important planning tool no matter how much property an Adult owns or how much money they have in the bank. If an Adult becomes incapacitated and they do not have a POA then someone must apply to the Court to become the Adult’s “Committee”. This is a very expensive process involving lawyers, the Courts and the Office of the BC Public Guardian and Trustee.
Careful consideration must be given to who is appointed as an Attorney. The Attorney must be honest, organized, trustworthy and of good character. The general POA document will allow the Attorney to deal with the sale of property, bank accounts, re-investing money, paying bills, filing income tax returns and seemingly simple tasks like cancelling services such as hydro and cable. The document may never be needed but if it is both the Adult and the Attorney will be very grateful that it has been done and is available for use in what can be extremely difficult circumstances.
THE REPRESENTATION AGREEMENT
An Adult 19 years or older can appoint another adult as their “Representative” under a Representation Agreement.
There are two types of Representation Agreements:
1. A Section 7 Agreement for health Care, medical matters and basic financial matters (paying bills)
2. A Section 9 Agreement for health care and medical matters only.
A Section 7 Agreement provides for r outine financial, health, and personal care
decisions. This document is available to those Adults who have reduced decisional capacity required for a Power of Attorney and Section 9 Representation Agreement and is a very valuable tool in that instance. For the purposes of this article, however, we will focus on the Section 9 Representation Agreement.
A Section 9 Representation Agreement (sometimes called an “Enhanced” Representation Agreement) appoints a Representative to make health care and medical decisions for the Adult if the Adult becomes incapable of expressing their wishes and this includes the ability to refuse life-sustaining treatment. This is extremely important because if there is no legally appointed Representative then the “default” person – a Temporary Substitute Decision Maker under the Health Care [Consent] and Care Facility [Admission] Act) – is called upon to make those decisions. Generally speaking this Temporary Substitute Decision Maker (TSDM) is the Adult’s next of kin, however, attempting to determine and contact the next of kin can cause delays in providing health care and can cause major disputes among family members when only one member of a class (ie. only one child) is contacted and their instructions followed. Once a TSDM is named it is only for that one medical incident and if further medical decisions are needed in a month’s time the hospital and health care staff must go through the same lengthy procedure to find a TSDM. This applies to spouses as well!