Do I need a lawyer’s help to have one?
The Province of British Columbia has published an incredibly informative and easy to read guide for advance care planning called “My Voice” that can be accessed online here (https://www2.gov.bc.ca/assets/gov/people/seniors/health-safety/pdf/myvoice-advancecareplanningguide.pdf).
The guide includes forms of the two types of representation agreements that can, indeed, be used without the assistance of a lawyer.
Some of us will keep our crisp thinking abilities through to a ripe old age when we will pass away peacefully in our sleep.
Many won’t.
A representation agreement allows you to appoint someone to make health and personal care decisions for you at times when you do not have the consciousness or thinking ability to make those decisions yourself.
There are two types of representation agreements.
Unfortunately, they are referred to by the section number of the Representation Agreement Act that makes them possible. One is referred to as a “Section 7” representation agreement and the other a “Section 9”.
How unfortunate that they were not given descriptive names!
The Section 9 agreement is the more powerful of the two when it comes to health care decisions. It can authorize your representative to give or refuse consent to any types of health care, including care that would be necessary to keep you alive.
I am not going to discuss the Section 7 agreement in this column because I’m already going to be pushing my word limit. Section 7 agreements require a lower level of mental capacity to enter into, provide less robust health care authority, and include provisions for a junior version of a power of attorney. Email me, please, to let me know if you would like to write about it at some point.
None of us can predict our future.
We cannot possibly know in advance what health care decisions will need to be made in every possible circumstance.
If we had a crystal ball, we could write those decisions down in a document called an “advance directive”. The My Voice publication I mentioned at the beginning of this column includes that form as well.
Of course, you would want your decisions to be informed by medical advice. When deciding whether you would want chest compressions as an 87-year-old who is within weeks of dying from cancer, you would want to know from a doctor the likelihood of chest compressions restarting a heart as well as the likelihood of being left with fractured ribs that would make your remaining days miserable.
An advance directive might be something you want as part of your incapacity planning if there are particular health care decisions that you know with absolute certainty you want made in a certain way, regardless of circumstances.
When care decisions must be made in my future, when I don’t have the consciousness or thinking ability to make them on my own, I want someone I trust who I have shared my wishes and values with to make fully informed decisions on my behalf.
Is it important to have a representative agreement? What will a doctor do if you have not appointed a representative?
Except in an emergency, a doctor must get your permission to provide care. If you have a Section 9 representation agreement, the doctor will turn to your appointed representative.
If you don’t, the doctor must consult with a default substitute decision maker unless there is an advance directive that specifically deals with the care decision.
I say “default” because the law provides a priority list of people they must turn to.
They must first turn to your spouse (including a common law spouse).
If you don’t have a spouse, then it’s an adult child.
If you have five adult children, they can turn to any one of them.
I wouldn’t want my care decisions left to a default substitute decision maker.
One reason is that they do not have the same level of authority as can be provided to a representative in a Section 9 representation agreement.
Another is that I don’t want to leave the determination of who makes decisions on my behalf to a default priority list.
It’s important to understand that by appointing a Section 9 representative, you do not give up anything of your decision-making authority.
A doctor will ignore an appointed representative if you are able to decide on your own.
And your appointed representative must follow any instructions or wishes you express to them before you lose your ability to make your own decisions.
If you have not given instructions or wishes applicable to a care decision, your Section 9 representative must make that decision according to what they know about your beliefs and values.
It’s important to think about and share your beliefs, values and any particular instructions or wishes with your appointed representative so that they are best armed to make decisions on your behalf if called upon.
Back to the “do I need a lawyer’s help” piece.
The form in the Your Voice publication can be modified.
Some types of medical decisions cannot be made for you unless the power to do so is specifically listed in the document.
You can change the form to allow a doctor to follow an advance directive and not consult with your representative.
You might want to give your representative the authority to choose medical assistance in dying on your behalf in situations where you would absolutely have made that choice for yourself if you had the capacity to do so.
The law doesn’t currently allow for a representative to choose medical assistance in dying on your behalf, but the law might (should, in my view) change.
I will always recommend that a lawyer be consulted when taking legal steps, including those that can be taken on your own by filling out free forms.
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.