Advanced Care Planning

Mar 12

I appointed my spouse/daughter/friend to be my power of attorney. That will allow them to make my medical decisions for me if I become incapable, right?

This is a question that we, as estate planning lawyers, hear all the time. And the answer may surprise you. The answer is no! In British Columbia, a power of attorney is a document that appoints someone you trust to make legal and financial decisions on your behalf but it does not allow them to make medical decisions on your behalf.

So who is responsible for making medical decisions on your behalf? The answer to that question depends on the documents that you have put in place as part of your Advanced Care Plan.

An Advanced Care Plan is an umbrella term to describe the framework of your end-of-life care planning. Some of the documents that make up an Advanced Care Plan are legal documents, while others are medical documents.

The legal documents that make up your Advanced Care Plan are an Advanced Directive and a Representation Agreement.

Advanced Directive

Also known as a Living Will, an Advanced Directive is a legal document that sets out what actions should or should not be taken in regard to an individual’s health if the individual is no longer able to make or express decisions for themselves. Advanced Directives are recognized in the Health Care (Consent) and Care facility (Admission) Act (the “Act”) and defined as “written instruction made by a capable adult that gives or refuses consent to heath 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.” In other words, they are instructions or directions that a person provides in advance. If a person is in need of health care and is incapable of giving or refusing consent, the Act directs the health care provider to take instructions from the Advanced Directive. An Advanced Directive does not appoint an individual to make decisions on your behalf; it is merely a recitation of your wishes.

Representation Agreement

A Representation Agreement is a legal document that appoints a person (your “Representative”) to make health care and personal care decisions if you become incapable of making decisions independently. Your Representative is authorized to make decisions about personal care, limited financial matters, major and minor health care, vocational and educational activities and, in some cases, end-of-life decisions and admission to a care facility. The Representative’s duty is to carry out the wishes of the patient and provide instructions to health care providers that are aligned with those wishes that the patient expressed while they were capable. For this reason, often times a Representation Agreement contains instructions similar to what would otherwise be included in an Advanced Directive.

The Act specifically states that where there is a Representation Agreement, the instructions of the Representative will take precedence over an Advanced Directive (unless the patient’s Representation Agreement specifically states that the health care provider may act in accordance with the patient’s Advanced Directive without the consent of the Representative).

But what would happen if you didn’t have a Representation Agreement or Advanced Directive outlining your medical wishes?

Temporary Substitute Decision Maker

If a patient is not capable of giving informed consent, a temporary substitute decision maker (“TSDM”) is appointed. The TSDM will be selected from the following list, in order of priority:

a) spouse;

b) child (who is over the age of 19);

c) parent;

d) brother or sister;

e) grandparent;

f) grandchild;

g) anyone else related by birth or adoption;

h) a close friend;

i) a person related by marriage.

The TSDM must be at least 19 years of age, have been in contact with the patient in the preceding 12 months, not be engaged in a dispute with the patient and be mentally capable themselves. Importantly, the TSDM must also be willing to comply with any instructions that the patient expressed while he or she was capable, and give or refuse consent based on the patient’s known beliefs and values.

Relying on the provisions in the Act to appoint a TSDM is one advanced care plan option; however, the burden on the TSDM is a heavy one and the TSDM may not feel equipped to express the patient’s wishes.

Medical Orders for Scope of Treatment

Another tool in the Advanced Care Plan toolkit is a Medical Orders for Scope of Treatment (“MOST”). MOST is a tool to communicate your wishes for medical intervention to your health care team. MOST is a medical document, not a legal document, and it is completed by the patient with their physician.

A MOST form sets out the specific level of care a patient wishes to receive depending on different medical circumstances which may arise, and is done with the expertise and advice of a medical professional. If you have a chronic or other life-shortening illness, it is prudent to discuss a MOST with your physician. The benefit of having a MOST completed is that the MOST is stored in your electronic medical record, making it accessible at hospitals and some clinics across the province. A MOST cannot be completed without your physician.

Contact Us

We would be happy to assist you in preparing your Advanced Directive and Representation Agreement so that your decision-makers can carry out your wishes. And if nothing else, even if you haven’t documented your wishes, ensure that you have candid, honest conversations with your loved ones to ensure that they are in a position to honour your wishes when the time comes.

Emily Anderson