AS DEATH APPROACHES
- 1 As Death Approaches
- 1.1 Who's in Charge before Death?
- 1.2 Medical Assistance in Dying
- 1.3 Resources
As Death Approaches
Who's in Charge before Death?
Incapacity planning is an important part of estate planning.
People who are struggling with legal or financial decision-making, or want to set out plans for future health care, have various options in case they become incapable of making those decisions. This section identifies different ways that legal, financial, medical, or personal-care decisions can be made for people who are no longer capable of making those decisions for themselves.
Temporary Substitute Decision Maker (TSDM)
A health care provider cannot provide health care to a capable adult without that adult’s consent (Health Care (Consent) and Care Facility (Admission) Act, s. 5), subject to some exceptions for emergency care and mental health intervention (Health Care (Consent) and Care Facility (Admission) Act, ss. 2 and 11-15). For an adult who is not capable of providing (or refusing) consent, the Health Care (Consent) and Care Facility (Admission) Act, s. 16, provides that a “temporary substitute decision maker” (TDSM) can be appointed to give (or refuse) consent to health care on behalf of the patient.
There is an order prescribed in the Act (s. 16) of close family and friends who are eligible to be TSDM. First eligible are spouse, children, parents, and then more distant relatives and friends. The TDSM must be a person who had had recent contact with the patient and has no dispute with the patient.
If the patient recovers and becomes capable of consenting to treatment, the appointment of the TSDM expires (Health Care (Consent) and Care Facility (Admission) Act, s. 17(2.2)).
A committee is appointed to manage the affairs of a patient who is incapable of doing so. The patient might be a person committed to a mental health facility, or assigned a guardian under the | Adult Guardianship Act, R.S.B.C. 1996, c. 6, Part 2.1, or declared to be in need of a committee by the Supreme Court of BC.
In applying to the court, the person seeking to be committee provides two affidavits from medical practitioners (Patients Property Act, s. 3). The patient might also nominate a particular person to be committee (Patients Property Act, s. 9).
The committee is often an individual or the Public Guardian and Trustee. “Committee” is defined in the Patients Property Act, R.S.B.C. 1996, c. 349, s. 1:
"committee" means the following persons:
(a) a person appointed as committee under section 6 (1); (b) the Public Guardian and Trustee under section 6 (3);(c) a statutory property guardian under Part 2.1 of the Adult Guardianship Act.
A committee may be appointed under the Patients Property Act as guardian of the patient’s estate, to look after the legal matters, property and finances. A committee might also have custody of the person (Patients Property Act, s. 15).
Typically, appointment of a committee for a patient will terminate or limit any power of attorney or representation agreement of the patient (Patients Property Act, ss. 19-19.1).
A representation agreement appoints an adult (or the Public Guardian and Trustee) as representative to make health and personal-care decisions on behalf of the adult granting the power. The representative is usually a family member or friend of the person granting the power, and must be 19 years of age or older. The representative is a fiduciary, bound to make those care decisions in the grantor’s best interests when the grantor is no longer capable of making them.
There is no prescribed form for a representation agreement, but there are two types:
- Standard Representation Agreements (under section 7 of the Act)
- Enhanced Representation Agreements (under section 9 of the Act)
An adult who is not capable of managing legal, financial, or health matters might still be able to enter into a valid standard representation agreement. A standard agreement could be valid so long as the adult approves of the basic content and effect of the agreement.
The standard representation agreement may authorize the representative to make decisions about any or all of the following:
- Personal care including admission to care facilities;
- Managing routine financial affairs
- (“routine” financial affairs include paying bills and opening accounts, as defined in the Representation Agreement Regulation, B.C. Reg 199/2001, s. 2);
- Health care decisions; and
- Legal services other than commencing divorce proceedings.
The representative in a standard agreement is not allowed to:
- Refuse health care necessary to preserve life; or
- Physically restrain or move the adult.
An enhanced (section 9) representation agreement goes beyond the limited provisions of a standard section 7 agreement and can be as broad or detailed as the adult wishes it to be. Unlike a section 7 agreement, it requires that the adult be capable of understanding the nature and consequences of the agreement. An agreement is made by setting out the terms in writing, naming the representative, and signing the agreement in front of two witnesses (or only one witness if that witness is a lawyer or notary) (Representation Agreement Act, s. 13).
An advance directive is a written instruction about health care that the adult wants (or does not want) at a future time when the adult will no longer be capable of communicating that instruction. It is defined in the Health Care (Consent) and Care Facility (Admission) Act, (s. 1):
"advance directive" means a written instruction made by a capable adult that (a) gives or refuses consent to health care for the adult in the event that the adult is not capable of giving the instruction at the time the health care is required
Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act, (ss. 19.1-19.91) goes into detail about how an advance directive works:
- An advance directive can consent or refuse any health care, but cannot demand or refuse anything illegal (s. 19.2);
- The directive is set out in writing, signed by the maker and two witnesses (only one witness is needed if that witness is a lawyer)(s. 19.5); and
- Capable adults may change or revoke their advance directives by destroying them or by executing revised directives in writing, signed and witnessed (Health Care (Consent) and Care Facility (Admission) Act, s. 19.6).
A Representation Agreement and an Advance Directive
If there is both an advance directive and a representative appointed under a representation agreement, and the patient is not capable of providing instruction, the representative will make most decisions for the patient, providing consent or refusing care in keeping with what the representative believes the patient would choose. There is an exception where the advance directive provides specific instructions about a medical procedure and expressly says that the representative’s consent is not needed, in which case the representative cannot override that express instruction (Health Care (Consent) and Care Facility (Admission) Act, s. 19.3).
Enduring Power of Attorney
A power of attorney (POA) appoints an agent as “attorney” to make legal or financial decisions on behalf of an adult who may be finding those decisions difficult. The ordinary POA expires if the adult granting the power loses mental capacity, but an enduring POA would continue after the adult no longer has capacity. It is defined in the Power of Attorney Act, R.S.B.C. 1996, c. 370:
"enduring power of attorney" means a power of attorney
- in which an adult authorizes an attorney to
- make decisions on behalf of the adult, or
- do certain things in relation to the adult's financial affairs, and
- that continues to have effect while, or comes into effect when, the adult is incapable
To make an enduring POA, set out the terms in writing, including the name of the attorney and that the authority to act will continue after the adult no longer has capacity. It must be signed and witnessed by two adults (only one if the witness is a lawyer), and the attorney cannot be a witness (POA Act, s. 16).
An enduring POA may come into force when it is signed or at a later date when the adult granting the power becomes incapable, depending on the terms of the POA (POA Act, s. 14).
Medical Assistance in Dying
The federal government passed a law in 2016 amending the Criminal Code and making it possible to request medical assistance in dying. The patient must be eligible for the procedure and the doctor or nurse practitioner assisting the patient must be qualified to do so.
If your loved one is considering medical assistance in dying, there is an application process. To be eligible in BC, the patient must:
- Enroll with a provincial health care plan (like Medical Services Plan of BC);
- Be at least 18 years old and capable of making health-care decisions;
- Consent to the procedure, without pressure from anyone and after considering other options that may be available; and
- Have a grievous and irremediable medical condition.
The patient completes a Patient Request Record requesting the procedure, and signs it in front of two witnesses. A beneficiary under the patient’s will cannot be one of those witnesses. The application must be approved by two regulated health professionals, who must either be doctors or nurse practitioners.
After the application is signed the patient has 10 days to reconsider, although that 10-day waiting period can be waived in some circumstances.
Not all doctors or medical professionals perform medically assisted dying. Talk to your doctor about finding a practitioner in your area who is qualified and available to perform the procedure.
- The federal government provides information about the law and eligibility generally at “Medical Assistance in Dying”
- The BC government provides information about the procedure in BC at “Medical Assistance in Dying”
- Clicklaw offers an online wiki, “Types of Substitute Decision-Making in Residential Care”
- Heritage Law provides detailed information online about “Representation Agreements”
- The Canadian Bar Association provides a Dial-A-Law script and online page on “Power of Attorney and Representation Agreements”
- Adult Guardianship Act, R.S.B.C. 1996, c. 6
- An Act to Amend the Criminal Code and to Make Related Amendments (Medical Assistance in Dying), S.C. 2016, c. 3
- Family Law Act, S.B.C. 2011, c. 25
- Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181
- Limitation Act, S.B.C. 2012, c. 13
- Patients Property Act, R.S.B.C. 1996, c. 349
- Power of Attorney Act, R.S.B.C. 1996, c. 370
- Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383
- Representation Agreement Act, R.S.B.C. 1996, c. 405
- Trustee Act, R.S.B.C. 1996, c. 464
- Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”)