When considering health and wellness, choosing a substitute decision maker in the event of an illness or incapacity should be high on the priority list. On September 1, 2011, there were significant changes to this area of law in British Columbia. There are now five options for substitute decision making in British Columbia: the enduring power of attorney; the representation agreement; the advance directive; the temporary substitute decision maker; and a court ordered guardian (known as a “committee”, pronounced caw-mi-tay, with emphasis on the end of the word).
Of these five options, only the first two give an adult the opportunity to choose who may make decisions during a future incapacity. This article provides some guidelines for making the right choice for a substitute decision maker. It also briefly explains the other three options for substitute decision making in British Columbia today.
Enduring Powers of Attorney
The enduring power of attorney is used to appoint an agent (called an “attorney”) to make financial and legal decisions in the event of a future incapacity. With the exception of certain non-related persons providing personal care or health care services to an adult for compensation (including an employee of a care facility), any person may be appointed as an attorney.
Because an attorney may be responsible for your finances for an extended period, it is important to choose someone with not only the skills but also the time to carry out his or her duties. The duties can cover a wide range of matters, including: making and managing investments; payment of bills; ensuring that tax returns are filed; dealing with pension authorities; and perhaps even selling your home, if you are no longer able to live there. An attorney must also maintain good records.
Although the natural choice may be a family member, consider carefully whether that person is the best choice. Ask yourself if the person:
Diligently maintains his or her own finances and keeps good recordsEnjoys a good relationship, and the ability to communicate, with your family members Has common senseHas time to take on the management of your financial affairs.
For some, family dynamics may make it difficult to choose one or more family members as an attorney. For others, there may be no immediate family member or close friend able and willing to act. (Note that it is not necessary for an attorney to live nearby. With modern technology, finances can be managed “remotely”, once the power of attorney is in place.)
For those who prefer not to appoint a family member or even a friend, a professional may be the answer. Trust companies, accountants, lawyers and other professionals offer power of attorney services. While there will be a cost for the service, it may be worth it to know that your financial affairs are in good hands.
Where a family member or friend is chosen, take the time to confirm that he or she is willing to assume the decision making duties before making the appointment. Consider as well including a compensation clause in the enduring power of attorney: without one, an attorney must do the job for free.
Finally, do consider appointing an alternate attorney, in the event that your primary choice is unable to act or continue to act as your attorney.
The Representation Agreement
There are two types of Representation Agreements permitted in British Columbia, commonly known as Section 7 and Section 9 agreements. A Section 7 agreement is used by persons with limited capacity and accordingly permits only limited decision making for health care and routine financial management. It is the Section 9 agreement which is more commonly used by a capable adult for health care and personal care decision making, and is the focus of the following discussion.
With the exception of certain non-related persons providing personal care or health care services to an adult for compensation (including an employee of a care facility), any person may be appointed as a representative.
The law requires that a representative must consult with the adult to determine his or her current wishes, and comply with the wishes of the adult if reasonable. Where such wishes are unknown, the representative must “stand in the shoes” of the adult and make health care decisions based on the adult adult’s known beliefs and values. If such beliefs and wishes are not known, the representative must then make a decision in the adult’s best interests.
Given these duties, it is important to choose a person
aligned with your own beliefs and values for health and personal carewith whom you can routinely communicate your wishes for health and personal care on an ongoing basiswho has insight into your health care needswho can advocate for you with health authorities and health care professionalsenjoys a good relationship, and the ability to communicate, with your family members
Finally, do consider appointing an alternate representative, in the event that your primary choice is unable to act or continue to act as your representative.
Other Options For Health Care
The Advance Directive
Where there is no enduring power of attorney or representation agreement, an adult may consent or refuse consent to health care being provided in the future in a written document called an advance directive. Where the formal requirements of such a document are met, health care providers may follow the instructions in the advance directive, unless:
the instructions do not address the health care decision to be made;the instructions are so unclear that it cannot be determined whether the adult has given or refused consent to health care;the adult’s wishes, values or beliefs in relation to a health care decision have significantly changed; orthere have been significant changes in medical knowledge, practice or technology that might substantially benefit the adult in relation to health care.
Prior to the recent changes to the law, an advance directive was not legally recognized. It remains to be seen how effective it will be as a substitute decision making option in the future.
Temporary Substitute Decision Makers
If there is no representative or committee in place, a health care provider may appoint a temporary substitute decision-maker to give or refuse consent for an incapable adult. The person must be chosen from a statutory hierarchical list, as follows:
the adult's spouse or partnerthe adult's child who is over 19the adult's parentthe adult's brother or sisterthe adult’s grandparentthe adult’s grandchildother relatives by birth or adoption (but not in-laws or step-children)close friendpersons immediately related by marriage (including in-laws and step-children)the Public Guardian and Trustee.
While this statutory list may, at first blush, seem like a viable option for substitute decision making, the authority is limited to a 21 day period (which is, practically speaking, often extended by the health care provider). Moreover, if there is any dispute amongst family members about the decisions made, the health care provider will decline to accept instructions from the temporary substitute decision-maker, leaving a court application for committeeship as the only remaining option.
A court may appoint a person to be a committee of a patient’s estate and/or person. These roles correspond to the areas of authority under an enduring power of attorney and a representation agreement. Such an order may only be made after the court has declared the person incapable of managing his or her affairs and/or person.
Although any one (including the Public Guardian and Trustee) may apply to be appointed as your committee, you may nominate a person of your choice in advance, provided that certain formalities are satisfied. Such a nomination is considered by, but is not necessarily binding upon, the court. Ultimately, the court will decide on the appointment of a committee based upon your best interests at the time of the court application.
Because the committee process is invasive, lengthy and expensive, it is the least preferred option for capable adults who wish to plan for substitute decision making in the event of a future incapacity.
Fiona can be reached in Victoria at 250-388-6631 or toll free at 1-866-467-2490.