Do I really need a representation agreement? My friend had no difficulty directing the care of her spouse when they were in the hospital with a serious illness.
Barb, of Kelowna, e-mailed me the day my first end-of-life related column was published near the end of January 2024.
She started : “Here you are, not even started yet, and suggestions are pouring in!”.
She continued: “At some point I would love you to tackle the situation of making sure you have a personal health directive in place prior to you becoming ill. Last year, I had a sister I did a health check on who ended up in hospital. What a mess! I became her advocate with health officials. All she had was a will which kicks in only after you are dead. Such a stressful time. No one would listen.”
I asked to interview her at some point. That interview was this past week.
Barb had long been a promoter of getting your ducks in a row. She had talked to her siblings years before about having the full gamut of paperwork done, i.e. power of attorney, representation agreement, advance directive and will.
But she still faced the quagmire of stressful uncertainty that occurs when those materials are not available.
Barb’s sister had some type of slowly progressing dementia but was continuing to live independently when she became gravely ill.
Barb checked on her sister regularly and got her to the hospital.
Intake went smoothly. Her sister was too ill to communicate for herself and everyone turned to Barb to learn about her sister’s history and condition.
Barb was treated as the trusted sister that she was.
It was after her sister was put in a ward and the practical need to have consent for medical procedures came up that the problems arose.
One procedure that became necessary was to have her sister’s bladder drained. An infection was blocking the natural process and a minor procedure was required to insert a catheter to allow for drainage.
Except in an emergency, medical procedures cannot be performed on you without your consent.
Barb wasn’t armed with her sister’s advance directive, a document I referred to briefly in my last column where you can give written consent for future medical procedures.
Nor was she armed with a representation agreement, the focus of my last column, where her sister could have appointed Barb to give consent on her behalf.
Making matters worse, Barb wasn’t able to tell the medical folks that those documents did not exist. She in fact expected that her sister had gotten her ducks in a row like she had recommended years before.
Barb searched her sister’s condo for the documentation. She found other materials, like the useless paperwork from the sale, a decade previously, of her sister’s house. But not the important stuff.
Absent an advance directive or a representation agreement, medical folks can turn to a substitute decision maker. But there was uncertainty about the existence of those materials and Barb wasn’t the top of the default list. Her sister’s daughters were in Alberta.
Barb was the person best equipped to help direct her sister’s medical care. And she was at her sister’s bedside.
But she had no authority.
Not only was she unable to help but she was kept in the dark. Your medical status is confidential and cannot be shared with someone without authority.
Imagine the frustration and helplessness Barb felt.
The happy news is that although the red tape of consent resulted in some delays, Barb’s sister got the excellent care that is characteristic of the fine folks at the Kelowna General Hospital and recovered from her illness.
And it turns out that her sister had, indeed, gotten her ducks in a row. Barb helped clean out her sister’s condo when she was moved to Alberta to be close to her daughters. Sure enough, a representation agreement and advance directive were found intermingled with a boatload of inconsequential materials.
Ok, she had gotten the ducks put together. Just not in a row!
Barb has some hard-earned advice.
One is to make a representation agreement, being careful to appoint the most appropriate person as your representative.
It doesn’t have to be an expensive and time-consuming process. My last column shares a link to a free form that you can use.
Most people Barb talks to about this issue are reluctant to put their minds to the possibility that they will face a level of illness needing someone to make decisions for them.
Her message to them is that they are being unfair to their loved ones. They are the ones you are leaving in the lurch if you don’t take these steps.
Her other advice is to keep your representation agreement, advance directive and any other important documentation about your care in a place where they can be found. And tell those who care about you where that is!
Interior Health and other health authorities suggest using a green plastic folder and keeping it on or near your fridge, noting that paramedics are trained to first look there for any advance care documents. You can request a free greensleeve here (https://www.interiorhealth.ca/sites/default/files/PDFS/greensleeve-guide-individuals-and-families.pdf).
Please e-mail me with any questions you might have about this subject matter. And I invite you to review the wonderfully informative “Frequently Asked Questions” Ministry of Health publication about advance care planning that can be found here (https://www2.gov.bc.ca/assets/gov/people/seniors/health-safety/pdf/faqadvancecareplanning.pdf)
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 ½ years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.