Planning for incapacity


We all know the importance of having a valid will, but how many of us have done any life planning for incapacity? What we mean by “life planning” is planning for the possibility of mental and/or physical incapacity. Until 2002 the only way to plan for incapacity was to appoint someone as an enduring power of attorney, which would give authority to someone to make financial and legal decisions on behalf of that person. There was no provision for health care decisions other than a “living will”. If an individual became mentally incapacitated someone (usually a family member) would have to apply to court for the appointment of a Committee, with the Public Guardian and Trustee requiring notification and involvement.   

It is well known that over the next 20 years the number of adults over the age of 75 years will quadruple, with increasing pressure on hospitals, care facilities as well as the Public Guardian and Trustee.  During the nineties the government of British Columbia foresaw that the then present state of affairs was inadequate for the anticipated change in demographics. They also saw the need to give individuals more autonomy and decision making powers about their health care needs in the event they became incapacitated, in particular by providing a system that would allow them to pre-appoint a representative who they could trust to make health care decisions.

In 2002 the Representation Agreement Act created a new legal framework for individuals to appoint a representative to make decisions for them should they become incapacitated. A Representation Agreement under the new Act provides for a legally enforceable document where an individual has discussed at length with their representative their wishes for medical treatment and living arrangements.

If you would like to know more about having a Representation Agreement, please contact one of the lawyers who practice in the area of Elder Law.