You have a will, but what are you missing?
Most seniors in British Columbia will proudly tell you that they have taken the time to make a will. However, many don’t know about other the other important tools and documents they need to sufficiently plan for the future.
“A will is a critical legal document, but it only deals with what happens to your assets following your death. Other legal documents allow British Columbians to plan in advance for who will make—or help them make—health care, personal care, financial, legal or property decisions in the event that they are unable to make decisions for themselves,” says Krista James, National Director of the Canadian Centre for Elder Law.
Personal planning refers to tools and documents that a person may put in place. It includes tools which can give another person the authority to carry out their wishes, should they no longer be able to make their own decisions.
“Sometimes important decisions need to be made at time when you are not able to understand information or participate in a conversation about your wishes. This mental incapacity could arise due to a serious illness, an accident, or the progression of a disease like Alzheimer’s,” explains James.
“Ultimately, if you don’t decide in advance who you want to make those decisions, someone else will. Advance planning lets you choose a person you trust. In this way it gives you more control over decision-making at a particularly vulnerable time in your life,” she continues.
Personal planning includes thinking ahead about who will manage the health, personal, legal and financial aspects of your life if you are no longer able to do so.
There are several important documents you might want to talk to you lawyer or notary about. Seniors First BC can provide free legal assistance with some documents, such as representation agreements. Alternatively, The Nidus Personal Planning Resource Centre, a non-profit, charitable organization also provides information, templates and public legal education on personal planning and related matters.
Route 65 recommends that capable adults, regardless of their current health, have the following documents in place. Remember, these documents are only useful if people know where to find them. Having frequent conversations often about your wishes is also important.
Enduring Power of Attorney
An Enduring Power of Attorney is a legal document that appoints another person to be responsible for their legal and financial affairs, should they be unable to make those kinds of decisions.
This document would allow someone to manage banking affairs, or sell a vehicle which is no longer being used, for example. This document can also be used to empower someone to sell real estate.
It does not cover health care or personal care decisions.
Representation Agreement
A representation agreement allows an adult to appoint a trusted person to make health and personal decisions on their behalf, like what medical care they will or will not receive. It is also possible to use a representation agreement to appoint someone to make certain kinds of legal decisions or to manage routine financial affairs (see section 7).
There are two types of representation agreements, a section 7 and a section 9.
A Section 9 Representation Agreement is intended for capable adults who are planning for the future and only covers health and personal decisions. A Section 7 Representation Agreement can be used to appoint a person to make certain financial and legal decisions on the person’s behalf, in addition to some types of health and personal care decisions. A person may draft a Section 7 agreement even if they have some mental capacity issues, and do not understand enough information to be able to make all of their health care or financial decisions or hire their own lawyer. Because a Section 7 agreement covers many of the things possible under an Enduring Power of Attorney document, a representation agreement can be a good alternative if someone does not have the capacity to make a Power of Attorney. However, A Section 7 agreement does have some limitations in comparison to a section 9 agreement – for example, it does not cover admission to most types of care homes.
Other Important Terms
Advance directives are used to document specific directions or instructions to be carried out by a medical professional, should a person become incapable. For example, a person may indicate that they do not want to receive antibiotics, should they get an infection in hospital.
Advance directives do not cover personal care, legal or financial matters.
MOST
In some health authorities the Medical Orders for Scope of Treatment (MOST) is a physician’s order used to document goals of care. A MOST is not a legal document and it cannot appoint a substitute decision-maker for your health care.
Living Will
Living wills are not considered legal documents in British Columbia. This term is sometimes confused with advance directives.
Temporary Substitute Decision Maker Hierarchy
Health care professionals will consult the Temporary Substitute Decision Maker (TSDM) hierarchy to determine who should make health care decisions, if a person does not have relevant plans in place. The hierarchy is as follows:
- Spouse
- An adult child (no particular order)
- A parent
- A sibling
- A grandparent
- A grandchild
- Other relative
- Close friend
A person appointed as a TSDM will face limits in terms of the kind of decisions they can make. Their authority does not include personal care decisions.
Should it not be possible to appoint a TSDM (or if there is a dispute) the Office of the Public Guardian and Trustee will sometimes help identify a TSDM, or make a treatment decision.
As a last result the court may appoint a committee on application by an individual or the Public Guardian and Trustee. This is a person who can make legal, financial, personal or health decisions on behalf of an adult who is considered incapable. A committeeship takes away the person’s right to decide for themselves, is costly, and requires considerable reporting on behalf of the committee, so it is best if this can be avoided by putting appropriate planning in place early.
Resources
Alzheimer Society of B.C.: Planning