Posted on June 14, 2017 by David Severide in Featured, Wills & Estate Law Under BC law, a Power of Attorney can only be used for legal and financial decision making on behalf of another person (in law we call that person the “donor”). Powers of Attorney have been around for hundreds of years and are well-used documents that are effective for paying bills, selling a residence, signing a contract and similar transactions on behalf of the donor. So far, so good! (For more important information on Powers of Attorney, see my prior blogs).
But when you take your Power of Attorney to the hospital to give consent for your ailing parent to have an operation, suddenly you are told that you are not able to use a Power of Attorney! You may then be asked if you have been named in a Representation Agreement for health care decisions. Representation Agreements are relatively (by legal standards at least) new planning documents that were created under BC law to fill the gap for the substitute medical decision-making created by the limitations of the Power of Attorney. Similar to the Power of Attorney, we have a donor who appoints a representative in the Representation Agreement to be her or his decision-maker for minor and major health care matters in the event that the donor is incapable of making those decisions due to poor physical or mental health. All stakeholders in the health care system in British Columbia are bound to honor the medical decisions made by a Representative, and I am sure that the hospital administrators breathe a sigh of relief when a family member presents a properly prepared and duly signed Representation Agreement. From that point forward, the hospital staff and doctors are required to deal only with the named Representative and therefore do not have to waste valuable time trying to obtain an agreement from several family members as to whether a certain medical procedure should be undergone by the donor or not. Sometimes such decisions need to be made on an urgent basis and time will be of the essence for a quick but authoritative decision! A little known fact is that a Representation Agreement, if properly worded, can also be used as a form of Power of Attorney to deal with basic financial transactions on the donor’s behalf. Unfortunately, most financial institutions are unfamiliar with this power and the result is that the Representation Agreement will often be referred to the bank’s legal department to be reviewed to confirm if it can be used or not, which can take weeks if not months! For that reason, we always recommend that our estate planning clients have both a Power of Attorney and a Representation Agreement as part of their estate plan so that all bases will be covered in the event of a sudden illness in the family. Another benefit of a Representation Agreement is that the donor can specify that he or she does not want any heroic measures taken to prolong life in the event that there is no reasonable expectation of a recovery and death has become imminent. The donor can direct that life support should be discontinued in that event, or that CPR should not be administered (CPR on a frail elderly person is an extremely intrusive intervention). Such directions used to be contained in what is known as a “Living Will”, but only under the legal authority provided for in a Representation Agreement can the direction be considered as legally binding rather than simply a statement of the donor’s wishes. Of course, both Powers of Attorney and Representation Agreements terminate on the death of the donor, so at that point having a valid Will in place to name an executor and to provide for an orderly distribution of your estate to your loved ones and favorite charities is vitally important! Finally, it is important to recognize that neither a Power of Attorney or a Representation Agreement provides any authority to authorize an assisted suicide. Under BC law, assisted suicides have to be authorized by the Supreme Court. The law is changing quickly in regards to assisted suicides so stay tuned for a future blog on this topic!