This article discusses three commonly used incapacity planning documents: Power of Attorney, Representation Agreement and Advance Directive.
Power of Attorney
A Power of Attorney (“POA”) is a legal document that allows you to give legal authority to a trusted person (your “attorney”) to manage your legal and financial affairs on your behalf. The scope of your attorney’s powers is determined by the terms of your POA. When your POA comes into effect is also determined by the terms of your POA. Your POA can be revoked or amended by you at any time (provided that you still have the capacity to do so) and is otherwise terminated by your death, cancellation by the Court, or the appointment of a Committee.
A few commonly used types of POA’s are listed below:
A general POA becomes effective upon execution, however you may continue to exercise powers granted to your attorney (provided that you still have the capacity to do so). A general POA automatically ceases to have any effect upon your incapacity.
Like a general POA, an enduring POA becomes effective upon execution, however it does not cease to be effective upon your incapacity and instead, continues to be effective if you should later become incapable of managing your affairs.
A springing POA will only take effect should you become incapable of making decisions about your financial affairs in the future. In order to use the POA, your attorneys will have to obtain statutory declarations from one or more medical doctors (depending on the terms of your POA), in which they declare that you are incapable of making decisions about your financial affairs. Should the springing POA become effective, it would permit your attorney to manage your legal and financial affairs on your behalf.
While most POA’s grant your attorney broad powers which allow them to “step in your shoes”, you may also limit your attorney’s powers to a specific task or time period. This is called a limited POA. Note that limited POA’s can also include enduring clauses, allowing them to remain effective after you lose incapacity.
The Representation Agreement
A Representation Agreement (“RA”) appoints an agent (your “representative”) to help you make decisions and to make decisions on your behalf with regards to health care and personal care, including decisions about where you live. The scope of your representative’s powers is determined by the terms of your RA. When your RA comes into effect is also determined by the terms of your RA. Your RA can be revoked or amended at any time (provided that you still have the capacity to do so) and is otherwise terminated by your death, cancellation by the Court, the appointment of a Committee, the termination of a spousal relationship (only if your representative is your spouse), or if your representative becomes incapable, resigns or dies and your RA does not provide an alternative representative.
Your RA is governed by the Representation Agreement Act of British Columbia. A number of amendments have been made to that Act since it came into force and more may occur in the future.
The Advance Directive
An Advanced Directive (“AD”) is a written instruction that gives or refuses consent to a specific health care treatment in the event that you are not capable of giving instructions at the relevant time. The directive will confirm your intent in situations where you are being kept alive by artificial means and there is no chance of recovery. The directive is intended to provide directions to health care providers and may be relied upon without the need for any substitute consent from a committee, representative, family member or any other person unless the directive says otherwise. You can revoke or amend your AD at any time (provided that you still have the capacity to do so).
For clarity, AD’s speak directly to the doctor or medical staff whereas a RA appoints someone to make your medical wishes for you (based on your last known wishes). There can be benefits to both documents and avenues.
We advise that you should review your incapacity planning documents, along with all other estate planning documents, periodically to ensure that it still operates in a manner that reflects your wishes. Specific things to consider when reviewing your incapacity planning documents include advances in medical technology and your current wishes, values and beliefs.
For more information, please do not hesitate to reach out to one of our lawyers practicing in the area of estates law.
Author: Sasha Platz
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250) 448-2637 or any of our lawyers practicing in the estates law at the following:Jennette Vopicka: firstname.lastname@example.org Danielle (Dani) Brito: email@example.com Jane Otterstrom: firstname.lastname@example.org Sasha Platz: email@example.com