Many seniors have financial and medical concerns relating to their care as they become older. Being capable of rational conduct and managing your own affairs is the cornerstone of estate planning and why we encourage people to plan early. If someone becomes incapacitated, they lack the ability to sign legal documents. This leads us to compare two documents, a living will and representation agreement.
Many people still have a document often referred to as a living will, which is not legally enforceable in British Columbia. This document is an expression of wishes concerning your medical care. In the absence of no other planning documents, it may assist family and medical professionals in making decisions at a hospital. A living will is usually limited to end of life scenarios, such as whether or not you would like to be put on life support to extend your life.
Although a living Will is not legally enforceable it still had some distinct advantages- mainly that it expresses your wishes. If this document was provided to a spouse or children then your intentions would be more clear. In many cases children have to make decisions with respect to their parents’ medical care. The living will – typically only one page and relatively simple to understand and inexpensive to prepare – should have reduced the disagreements that families may have encountered with respect to medical care. But a living will does not name a specific person to make medical decisions on your behalf.
You may recall the American woman named Terri Schiavo who suffered brain damage in 1990 when she was only 26 years old and became dependant on a feeding tube. Her husband wished to remove her feeding tube; her parents opposed this. This dispute was highly publicized involving four years of family conflict in the courts. Even the U.S. president became involved.
In British Columbia, a legal document that covers incapacitation is a representation agreement, and is quite different from a living will. First of all it is used to appoint another person to act on your behalf concerning health care matters. If you do not have a representation agreement, then provincial legislation provides a prioritized list of who may act as your substitute decision maker – most commonly, a spouse or children. If you want to be specific about whom you are appointing and what your wishes are, consider a representation agreement. This is especially important if you would like a person making these decisions who is not on the prioritized list. Others may feel that having a representation agreement could eliminate the need for loved ones to make difficult decisions. This document may also be effective for planning if you feel there could be some family conflict as to your health care. Most importantly, this document can clearly state your desires with respect to your health care and end of life wishes.
We encourage people to understand what a representation agreement is and how it can be used for estate planning. A representation agreement is a fairly lengthy document that deals with more than just whether you would like to extend life using life support.
The next time you are updating your will or power of attorney we encourage you to bring the topic up with the professionals you work with. Obtain information regarding the underlying costs and discuss who would be suitable to make health care decisions on your behalf. The person you appoint may or may not be the same person as your power of attorney. Remember that it is wise to appoint an alternate healthcare representative in the event your first representative is unable to act.
A comprehensive estate plan has at least three legal documents: will, power of attorney, and representation agreement. The representation agreement may reduce family conflict, especially in cases such as Terri Schiavo. This case also highlights that life events may impact both younger and older people. We encourage you to seek legal advice prior to acting on any information within our column.