The advent of new medical technologies. The ability to preserve life. The changing views regarding euthanasia. The above reflects the increasing importance of making sure that your wishes regarding your care are followed. The Representation Agreement is a document that gives you the opportunity to do just that – but what is a representation agreement?
A representation agreement is a legal document that allows you to appoint one or more people to manage your healthcare and your personal care only if you are no longer capable of managing these areas of your life on your own. For this document to come into effect, your incapacity will generally be determined through a medical assessment performed by your treating physician (i.e. while you still have the ability to make your own decisions, no one can override your own healthcare and personal care choices).
Importantly, a representation agreement will sometimes contain your wishes for your end-of-life care which are legally binding on your representatives. This means that your representatives will have no choice but to follow your carefully chosen wishes that you have made in advance. At times, this can be a relief to your loved ones as it removes the onus of having to make a potentially difficult decision from them. Common end-of-life care wishes include: whether to resuscitate you where your death is imminent; whether to provide you with pain medication although it may hasten your death and whether to remove you from life support if it is the opinion of doctors that you are permanently unconscious. The following are common questions regarding representation agreements:
Common Question #1: What if I do not have a representation agreement?
Where a person is incapacitated and does not have a representation agreement, the law in British Columbia stipulates that medical professionals will contact a prioritized list of people – spouse, adult children, parents, siblings and eventually a close friend — until they find someone capable and available to consent to your healthcare. The person who is capable and available becomes the Temporary Substitute Decision-Maker (TSDM) of the incapacitated person and has the authority to make decisions on a case-by-case manner. The types of decisions the TSDM will be asked to make will range from whether they consent to minor surgery on your behalf to whether you should be kept alive by artificial means.
Common Question #2: Why do I need a representation agreement if my next-of-kin makes healthcare decisions for me anyways?
The law draws a line between “healthcare” and “personal care”. While the former includes choices such as surgery, heroic measures, life-saving treatment and potentially euthanasia, the latter includes choices such as where you ultimately live, who you live with and what you eat. Importantly, only persons given authority under a representation agreement are permitted to make “personal care” decisions. Therefore, without a representation agreement, your loved ones could be placed in an array of difficult situations where they cannot make fundamental choices regarding your care. For example, elderly parents may be placed in separate care facilities due to space restraints and without a representation agreement, their adult children may have to seek permission from social workers and medical administrators for permission to relocate them. Whereas, if the parents had named their children within a representation agreement, the children would then have complete control to choose where their parents live.
A representation agreement can also give your representatives the right to access your medical and financial records. Without one, your loved ones may have a difficult time obtaining these crucial records that are pertinent to making decisions on your behalf. For example, it may give them limited access to your banking and tax information to determine whether you are eligible for admission into certain provincially managed care facilities.
With its broad discretion to make both healthcare and personal care decisions, a representation agreement is a powerful tool that deals with much more than just healthcare. Speak with your estate planning/incapacity planning expert today to see if it is the right document for you.
Jeremy Wong is an estate planning lawyer at Westcoast Wills & Estates.