Representation Agreements & Living Wills

What is a Living Will?

A Living Will is a statement of how a person wishes to be treated if they are mentally incapacitated and facing either a terminal illness or having suffered a catastrophic injury. Most Living Wills state that a person in such a situation wishes to be left to die in dignity with a minimum amount of medical interference other than pain relieving medication.

Is a Living Will recognized in British Columbia?

Living Wills, until recently, had no legal effect in the Province of British Columbia. They were simply a statement of wishes that were quite often followed by medical practitioners and by the family of the person who wrote the Living Will.

With the enactment of the Representation Agreement Act, (R.S.B.C. 1996) c.405, the British Columbia legislature has allowed Living Wills to be incorporated into Representation Agreements and which accordingly made them recognized legally.

What is a Representation Agreement?

A Representation Agreement is an agreement made between a person and a representative or series of representatives which sets out in written form how health care and financial decisions are to be made for that person in the event of incapacity.

There are 2 types of Representation Agreements: Section 9 Agreements and Section 7 Agreements.

Section 9 Agreements are used for health care while Section 7 Agreements can deal with health care, finances and are designed for those persons whose mental capacity is less than complete. A Representation Agreement in British Columbia largely deals with health care as well as instructions on where a person is to live in the event of incapacity and the type of health care he or she is to receive. It can be an extensive document and normally would include in it a Living Will statement.

Should everyone have a Representation Agreement?

That is a very difficult question. We are of the view that the following types of persons definitely should consider having a Representation Agreement:

A senior with no spouse and no children living locally;

A person in a second marriage where they know that disputes will arise between their children and their spouse in the event of their incapacity;

A person who has strong religious or moral views on health care and the termination of medical care.

What happens if I don’t have a Representation Agreement?

The legislation in the Province of British Columbia still allows other persons to make health care decisions on your behalf. Under the Health Care (Consent) and Care Facility (Admission) Act, (R.S.B.C. 1996) c.181 an attending physician can institute a process whereby he/she will appoint a “Temporary Substitute Decision Maker” to make those decisions relating to your health care. The procedure however, is cumbersome, takes time and is not easily understood at this point in time by many physicians. We expect within the next 10 years that more and more physicians will require Representation Agreements to be produced to avoid liability issues. For that reason, you should speak to your lawyer regarding a Representation Agreement.

What happens if I don’t have a Power of Attorney or Representation Agreement and I develop Alzheimer’s, dementia, or have a stroke or am otherwise mentally incapacitated?

Your family will have to spend some of your money. In order to make decisions about your health care and your finances, including the ability to sell your house your spouse and/or your children in that situation would need to apply for “Committeeship” of your person and/or your estate. This is a court procedure found under the Patients Property Act, (R.S.B.C.1996) c.349. It involves a lawyer making application to the Court and presenting a list of all of your assets, all of your liabilities as well as 2 affidavits sworn by 2 medical practitioners, attesting to your inability to manage yourself and/or your affairs. The Public Guardian and Trustee for the Province of British Columbia becomes involved, and once the Court Order of Committeeship is made, the Committee (which is akin to a guardian for an adult person) must make periodic reports on their activities to the Public Guardian and Trustee. Needless to say this is a cumbersome procedure and can be avoided with an Enduring Power of Attorney and a Representation Agreement.