One never knows….
Who will make decisions for you if you cannot make them for yourself? How will they make those decisions? Would they make the decisions that you would have made if you had the chance?
If your parent or spouse were to become unable to make decisions for themselves, would you be legally able to make them? This might include the need to sell property if funds are need or arrange for seniors housing or care? Would someone challenge the decisions you make or try to prevent your input?
Without clear directions set out in advance, disputes can cause rifts between siblings or a second spouse and adult children.
In our many years of working with Seniors and caregivers, we have witnessed strife in families where no one would have predicted it; and decisions made that were not in the best interests of the Senior and probably not what the Senior would have chosen for themselves had they been able or aware enough to make those decisions.
The only way to be sure that your wishes will be followed, that decisions will be made as you would make them, or that the person you wish to make decisions will be in a position to do so, is by having legally enforceable “Advance Directives.” Advance Directives are instructions given by a person while they are legally capable to do so, and that are respected in the event of incapacity.
In British Columbia, the only legal document for Advance Directives regarding the making of decisions about personal care, living situations and health is the Representation Agreement (“RA”). A simple RA can be made on one’s own or through a notary; more complicated ones must be made with a lawyer.
In your RA, you are able to set down whom you want to make decisions for you, under what circumstances those decisions should be made, and what decisions they can make. These include the kind of decisions that used to be included in a Living Will.
An RA function sets out a first representative and an alternate.The role of these representatives is to help you make decisions to the extent you are able, and to make them for you, as you would, when you are not. You may also appoint a monitor whose role is to insure that appropriate decisions are made.
An RA should include a clause that describes how it is “triggered,” meaning a description of the process that will be used to determine if you are incapable of making decisions. For instance,capability is usually evaluated by a physician but you might wish that to be decided by a Social Worker or Psychologist, as opposed to, or as well as a physician.
Even though it is a legal document, an RA could be challenged in court. Someone could claim, for instance, that you were not capable when you made it, or that someone had undue influence on you in its creation or you were signing it. If you are going to make an RA, consider having an appointment with your physician and letting him/her know what you are doing so that if there is a challenge, there is some medical record regarding your ability. An RA should have a dispute resolution clause in case there is some disagreement or challenge to it.
Although an RA can be written to enable representatives to make financial decisions for you, you may also have a separate document, which creates a Power of Attorney. The power of attorney is someone who is allowed to make financial decisions for you, pay bills, sell property, etc. on your behalf. If the document is created as an enduring power of attorney it allows the person you appoint to make or continue to make decisions regarding your finances if you become incapable.
At the present time, both the enduring power of attorney and the RA are effective once they are signed. Because of this, some lawyers would advise that the power of attorney or RA “be escrowed under a letter which authorizes the instrument to be delivered to the attorney/rep upon production of a medical opinion stating that the maker of the instrument is no longer capable. (from Clark Wilson LLP).”
Do NOT assume that ” it would never happen in my family.” Make a Representation Agreement . It is a gift you give your family and insurance you give to yourself.
For more information and how to get started with a Representation Agreements, click here to access the Nidus Registry, the official website that explains what you need to know.
Incapability: When Decisions are Made for You
In British Columbia, it is assumed that you are capable of making decisions for yourself, until it is shown that you are not. It is also assumed that there is not a strict either/or situation– people can often be helped to make their wishes known even when they have some impairment.
There are several ways that a person can be declared incapable. These are based on the Health Care (Consent) and Care Facility (Admission) Act, the Public Guardian and Trustee Act, the Mental Health Act and the Patients Property Act.
If you have not appointed an enduring Power of Attorney or made a Representation Agreement, and you are, or seem to be, incapable of making decisions, family members or others can apply through the courts to be appointed as either Committee of Person (someone who can make personal care decisions for you) or Power of Attorney under the Patients Property Act. The court will need the written evaluation of two physicians verifying a loss of capacity. But be warned: these processes can take several months and cost several thousand dollars. It is not unheard of for family members to end up pitted against each other in very expensive and acrimonious legal proceedings.
In the event that someone is incapable of making decisions regarding care and medical treatment and there is no RA, these types of decisions,especially in emergency situations, may sometimes be made by family in a legally determined order: spouse, children, parents, other relatives.This is the situation when conflicts can arise. However, it is important to remember that a person is considered capable until otherwise shown. If there is no family or no RA, the Office of the Public Guardian and Trustee can be contacted, and a Temporary Decision Maker may be appointed.
Under the Mental Health Act, a health care professional, usually a physician, can declare that someone needs medical or psychiatric intervention.The Mental Health Act allows an individual to be involuntarily admitted to hospital and treated for many months without their consent. This would happen through an initial admission of up to 48 hours using a form filled out usually by a physician, and having it renewed several times according to a process set out in the act.
Dementia could be grounds for providing care or treatment under the Mental Health Act, provided that it is advanced enough so that the person “needs care, management and control in a designated facility to keep them from putting at risk their well being or the well being of someone else or to keep their mental or physical condition from getting worse.”
If there is no one available to make decisions for you, or if there is dispute then the Office of the Public Guardian and Trustee can go to court to apply to become your decision maker on a continuing basis. They could also take on the managing of your finances, for a fee while someone else they appoint or agree to, makes decisions regarding your health, care, or housing.
The Office of the Public Guardian and Trustee is also available to monitor Representation Agreement representatives and the person acting as Power of Attorney. If someone feels that either of those parties are not working in the best interests of the individual or that any other type of abuse is happening, the PGT can be called to investigate.
For more information
- Office of the Public Guardian and Trustee
- Health Care Consent Act
- Mental Health Act
- Patients Property Act
Diamond Geriatrics wishes to thank Mark Weintraub with the law firm of Clarke Wilson for insight into some of the legal issues referred to in this Newsletter. Any errors are strictly those of Diamond Geriatrics.