When considering health care and incapacity planning, clients often wonder about the differences in representation agreements and advance directives.

An advance directive is a written document that contains instructions that give or refuse consent to certain health care treatments.  It becomes effective once you are no longer capable of making your own decisions regarding your personal health care.  Typical situations that an advance directive can address are whether or not you would like to receive life sustaining treatments, such as blood transfusions, feeding tubes, or mechanical respiration. 

Care must be taken when creating an advance directive to ensure that the directions contained in the advance directive are clear enough for the health care provider to feel confident following it without any further instructions from you or from anyone on your behalf.

An advance directive must be written and signed by yourself while you still have the capacity to understand the nature and effect of what you are signing. 

A representation agreement is a document that gives another person (your “representative”) the power to give or refuse consent to specific types of health and personal care on your behalf.  Representation agreements can empower your representative to make decisions surrounding where you live (including if you should live in a care facility), making any day-to-day decisions that you cannot make for yourself (such as decisions around your diet and dress), and giving or refusing consent to health care, including giving or refusing consent to health care necessary to preserve your life.  Your representative must act in your best interests and according to your wishes. 

As with an advance directive, a representation agreement must be in writing and signed by yourself while you still have the capacity to understand the nature and consequence of the representation agreement. 

The major difference, therefore, is that an advance directive provides instructions to be followed directly by your health care provider, without any input from your substitute decision maker, whereas a representation agreement appoints a substitute decision maker to make decisions regarding your personal and health care if you cannot.  Representation agreements also empower your representative to make personal care decisions for you, whereas advance directives address only health care. 

Author: Jane Otterstrom  

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 area of wills and estates at the following:

Jane Otterstrom: jane@touchstone.law

Una Kuzio: una@touchstone.law