Advance Care Planning in BC: Representation Agreements & Advance Directives

As British Columbians we have the right to express our voice and our thoughts about our health care both now and in the future. Previously living wills were used to express our thoughts on what type of care we wanted in the event we were unable to communicate those wishes to our family and healthcare practitioners. Today, we have the option of expressing our voice in a legal manner through the use of Representation Agreements and Advance Directives. New Incapacity legislation came into force on September 1st, 2011 and provided British Columbians with more options for communicating their plans and wishes for their future healthcare. Advance care planning allows us to plan the following;

  1. Who we would like to make our health and personal care decisions for us in the event we are unable to communicate them?

  2. What types of heath care treatments we would consent to or refuse if a healthcare provider has recommended them?

  3. Under what circumstances would we consent to or refuse these types of treatments.

  4. What types of living arrangements would we prefer in the event we are unable to be cared for at home.      

What is the difference between a Representation Agreement and an Advance Directive?

A Representation Agreement allows you to appoint a person to make decisions on your behalf should you be unable to communicate your healthcare wishes in the future. The person or person(s) you appoint must follow the wishes that you expressed while capable as best as possible. There are two forms of Representation Agreements;

Standard Representation Agreement: Section 7:

This type of representation agreement allows you to name a person or persons to make decisions for your personal & healthcare. These decisions do not include the ability for your representative to make life support or end of life decisions nor does it allow them the ability to physically restrain, move or manage you in the event your are objecting to treatment or need to be moved to an assisted living or long term care facility to ensure you receive the best possible care. In addition it allows your appointed representative to assist you with your routine financial affairs such as; 

  1. Payment of bills

  2. Receipt and deposit of funds from pension or other income sources

  3. Purchasing of food, accommodation and other services necessary for personal care

  4. The making of investments. 

Enhanced Representation Agreement: Section 9:

This type of Representation agreement allows you to appoint a person or persons to make any health and personal care decision for you in the event you are unable to communicate your wishes. These decisions include:

  1. The ability to decide where the adult is to live and with whom, including whether the adult should live in a care facility

  2. The ability to give or refuse consent to health care for the adult, including giving or refusing consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided.  

  3. The ability to make life support or end of life decisions. 

  4. The ability to, despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.

Any decisions that the representative makes must follow any expressed wishes that the adult has provided. We encourage all of our clients to complete health care instructions in addition to appointing a person or persons through a representation agreement. We believe that these instructions are essential and assist in answering a key question any representative may face in the event they are required to act: “What choice would they want me to make?” 

Advance Directive:

This document allows you to state your decisions in writing regarding your future healthcare treatments in the event you are unable to communicate them. These decisions can include consenting to or refusing life support or life prolonging medical care interventions. These directions must be followed by any healthcare practitioner who is aware of them and no one will be asked to make a decision for you. If a decision must be made and the situation was not addressed in the advance directive and you do not have a representation agreement a healthcare provider must make a reasonable effort to appoint a Temporary Substitute Decision Maker (as determined under the Health Care (Consent) and Care Facility (Admission) Act).

Frequently Asked Questions:

Who can make a Representation Agreement?

An adult (19 years of age or older in BC) who is capable of understanding the nature of authority being given to the Representative, and effect of giving authority may make a section 9 Representation Agreement. At Farley Martin Notaries Public, we take the time to ensure that our clients meet this capacity requirement through an interview process.

In the event the adult is unable to meet the capacity requirements for creating a Section 9 Representation Agreement, they may be able to create a Section 7 Representation Agreement.

To create this, an Adult Need not be capable of:

  • making a contract

  • managing his/her own health, personal care, legal affairs, or financial affairs 

The Adult must be capable of:
  1. Communicating their desire to have a representative make, help make, or stop making decisions on their behalf. In addition, the adult must demonstrate whether they are aware that making the representation agreement, or changing or revoking any of the provisions, means that the representative may make, or stop making, decisions or choices that affect the adult. 

  2. Demonstrating choices and preferences, and can express feelings of approval or disapproval of others.

  3. Communicating whether they have a relationship with the representative characterized by trust.

Can my Notary assist me in my advance planning goals?

Yes, at Farley Martin Notaries Public we can assist you in creating your advance care plan including drafting and witnessing of a Representation Agreement with health care instructions, an Advance directive or a combination of both.

Do I need to appoint a family member to be my Representative?

No, you can appoint any person you trust to be your representative through your Representation Agreement.

Can I revoke or change my Representation Agreement in the future?

Yes, you may change or revoke your Representation Agreement anytime provided that you meet the same capacity requirements that are required for an adult to have made an agreement. For more information on how to change or revoke and existing Representation Agreement, please contact one of our Notaries.

Can my Power of Attorney make my health & personal care decisions for me?

No, a Power of Attorney document may only be used to appoint a person to care for your financial and legal affairs. They are not able to make health and personal care decisions for you.

Do I need to appoint a Representative or have an Advance Directive?

No, you do not need to appoint a Representative through a Representation Agreement, nor are you required to have an Advance Directive. You may opt to instead allow your healthcare provider to choose a Temporary Substitute Decision maker in the event a decision needs to be made regarding your healthcare and you are unable to communicate your wishes. A TSDM is appointed by your health care provider who must choose the first, in listed order, of the following who is at least 19 years of age or older, have been in contact with you in the past 12 months, currently has no dispute with you, is capable of giving, refusing or revoking substitute consent and is willing to comply with their duties under section 19 of the health care (consent) and care facility (admission) act.:

 (a) The adult's spouse;

(b) The adult's child;

(c) The adult’s parent;

(d) The adult's brother or sister;

(d.1) the adult's grandparent;

(d.2) the adult's grandchild;

(e) Anyone else related by birth or adoption to the adult;

(f) A close friend of the adult;

(g) A person immediately related to the adult by marriage. 

 

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