You have your Will and your Power of Attorney – what else do you need for your estate plan? Your attorney, pursuant to your power of attorney can do anything you need them to do right?  Unfortunately, the one thing a power of attorney can’t do for you is make health care and personal decisions on your behalf.  This is one important area of quality of life that is often overlooked for people going through the estate planning process.

So, what happens when you lose capacity to make your own informed health care decisions? Who makes those decisions for you?

There are a few tools that can assist in this situation, including the provisions of the Health Care (Consent) and Care Facility (Admission) Act, an advance direction and representation agreements.   What you are comfortable with, your existing needs and your wishes regarding health care and life sustaining treatment, will dictate which tools are right for you.  A series of articles, starting with this one, will review each of these tools to help give you some clarity of this important piece of your estate planning.

If you don’t have a valid representation agreement or advance directive covering the respective health question at issue or a committee of the person, then health care decisions may be made under the Health Care (Consent) and Care Facility (Admission) Act (B.C.).  In those cases, you won’t have a choice of the care provided or the person who makes decisions for you (within the limits of the Act of course).

In cases of emergencies, the Act allows the health care provider to provide care without consent so long as:

1.       the care is necessary to preserve the adult’s life;

2.      the care is necessary to prevent serious physical or mental harm or to alleviate severe pain;

3.      the adult is apparently impaired by drugs or alcohol or is unconscious or semi-conscious; and

4.      the adult does not have a committee or representative who is authorized to consent to health care who is capable and available.

Where the care does not meet all of the above, the health care provider must seek consent.  The Act allows the health care provider to obtain substitute consent from an available and “qualified” individual in the following order: spouse, child, parent, brother or sister etc. (the ‘temporary substitute decision maker’).  A few of the things required for a person to be considered qualified are: the person must be at least 19 years of age, had contact with the adult during the last year and have no dispute with the adult.

A temporary substitute decision maker has the authority to refuse health care necessary to preserve life on your behalf, but only if there is substantial agreement among your health care providers that the decision to refuse life preserving health care is medically appropriate and the temporary substitute decision maker has, before refusing consent, attempted to consult with you, or is complying with any instructions or wishes you had expressed while capable. If instructions or wishes are not known, your temporary substitute decision maker may refuse consent if it is in your best interests.  The Act gives some direction as to what to consider when considering your best interests.

A temporary substitute decision maker only has authority for a period of 21 days.   After this time, if you still do not have capacity to make your own health care decisions, then either a representative pursuant to a representation agreement (if possible) or a committee for personal decisions needs to be appointed on your behalf.

In future articles, we will consider advance directives and representation agreements.

If you need further advice on what the health care decision making or are looking to simplify the complicated contact our wills and estate team at Touchstone Law Group LLP.

Author: Jennette Vopicka

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 real estate needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of estate planning at the following:

Una Gabie: una@touchstonelawgroup.com

Jennette Vopicka: jennette@touchstonelawgroup.com

Danielle (Dani) Brito: danielle@touchstonelawgroup.com