This is the final article of our 3 part health care series addressing the options available to you if you lose capacity to make your own health care decisions. It is very important to be aware that your Power of Attorney does not have the authority to make health care decisions on your behalf so it is worthwhile to consider your situation and decide which of the following options is best for you.

In the article dated October 28, 2014 “What happens when I can’t make my own health care decisions?”, we explained what would happen if you have neither an Advance Directive nor a Representation Agreement in place. The Health Care (Consent) and Care Facility (Admission) Act sets out situations where health care providers may provide health care to you without your consent. In situations where your consent is required, the Act allows for a temporary substitute decision maker to be appointed. While this may be useful in some situations such as sudden accidents, as the name suggests, this position is only temporary. If you are planning for the future, you should consider the following options as they provide greater security.

In the article dated November 3, 2014 “What does an Advance Directive do?”, we discussed option number two, the Advance Directive. This document simply provides instructions to your health care provider of the health care that you do or do not want. This is an easy document to create and does not place any responsibility on family members to make these difficult decisions. Yet, depending on your health condition, you still may need an authorized person to help make on-going decisions on your behalf or decisions not contemplated in your Advance Directive. For these reasons, a Representation Agreement provides you with the most flexibility in the unknown future.

A Representation Agreement allows you to appoint a representative to help you manage your affairs and if necessary, make decisions on your behalf if you become mentally incapable for any reason. The Representation Agreement Act provides for two kinds of agreements and, depending on your circumstances, you can choose either the “Standard Representation Agreement” set out in section 7 or the “Non-Standard or Enhanced Representation Agreement” set out in section 9.

Section 7 Standard Representation Agreement

One big advantage of a Standard Representation Agreement is that even if your mental capacity is currently in question and you need assistance right away, you can still execute this agreement even though you do not pass the required threshold for mental capacity. For example, if you have suffered a brain injury and as a result, are considered mentally incapable of creating a Will or a Power of Attorney, you may still be considered capable for the purpose of creating a Standard Representation Agreement and can therefore obtain the benefit of giving authority to a representative. As long as you can communicate a desire to have a representative make decisions and demonstrate preferences and express feelings of approval or disapproval of others, you will not be considered incapable of creating a Representation Agreement. A Standard Representation Agreement provides authority to the representative to make decisions regarding:

1. Major and minor health care: medications, tests, surgery, treatments, and dental care. This does NOT include decisions to refuse life-supporting care or treatment or unusual medical practices.
2. Personal care: living arrangements, diet, taking part in activities, etc.
3. Legal affairs: obtaining legal services and instructing a lawyer, defending or settling legal proceedings, etc.
4. Routine management of financial affairs: paying bills, opening accounts and transferring funds between them, and purchasing goods and services. This does not include larger transactions that a Power of Attorney would be entitled to make.

While this agreement does provide authority to make decisions concerning legal affairs and routine management of financial affairs, a Power of Attorney is still a better tool for dealing with these items as many banks and institutions still do not know how to deal with Representation Agreements.

Section 9 Non-Standard (Enhanced) Representation Agreement

This type of Representation Agreement is the best tool if you have the time to get all of your other estate planning documents (Will, Power of Attorney) in order and simply require health care security at a future time. A Non-Standard Representation Agreement may be limited only to health care and personal decisions, however, it is the most comprehensive document for these two areas. For example, your representative can refuse life supporting care or treatment and/or consent to less common medical procedures and other serious matters, which are decisions that your representative under a Standard Agreement cannot make. Given that the authority is much broader in these areas, you must have full mental capacity to understand the nature and consequences of the proposed agreement when granting authority to a representative.

Duties of Representatives

The Representation Agreement Act sets out considerations that your representative must follow when making decisions. Your representative must consult with you, to the extent reasonable, to determine your current wishes and to comply with them. However, this does not apply if your representative is acting within the authority you granted them with under a Non-Standard Representation Agreement or if your agreement has stated that your representative need only to comply with any instructions or wishes you expressed while capable. Similarly, if your current wishes cannot be determined, your representative must comply with any instructions or wishes you expressed while capable. If your instructions or wishes while capable are not known, your representative must act on the basis of your known beliefs and values, or in your best interests.

While these agreements are a relatively new concept, it is important to have the comfort of knowing that if you become incapable at some point, decisions affecting your health will be carried out in a manner consistent with your wishes today. Therefore, when you make the decision to have your Will drafted, it is very wise to have a Power of Attorney drafted to cover your financial matters, as well as a Representation Agreement and/or an Advance Directive for your health care matters. Our Lawyers are happy to help draft each of these documents to cover every angle of your well-being and ensure your future is secure today.

Author: Conor Zokol (Articling Student)

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