REPRESENTATION AGREEMENTS

A Representation Agreement is a tool that allows your appointed representative to make personal and health care decisions for you. There are 2 types of Representation Agreements, Standard and Enhanced. Standard Representation Agreements cover routine financial and/or health care decisions, while Enhanced Representation Agreements give broader powers to the representative, including end of life decision making.

Representation Agreements are much more thorough than the Power of Attorney. They may include your health care needs, you may appoint different representatives for different purposes and you may appoint a Monitor who will ensure that your representative is carrying out your wishes. In some cases the monitor is optional.

The increasing importance of Representation Agreements and Planning for Incapacity is outlined in a recent newspaper article:

                       TRAIL DAILY TIMES

“May 21, 2010

Planning for declining health advised

By Raymond Masleck Times Staff

A local senior's run-ins with the health-care system and the subsequent takeover of his wife's affairs by the province's public guardian is a cautionary tale about the need for people to plan for the eventuality they will become incapacitated.

George Brent had power of attorney for his 80-year-old wife Delores when she had a heart attack in August.

But that proved insufficient when she ended up in long-term care after suffering a stroke in September while still in Kootenay Boundary Regional Hospital.

Last month he got a letter from the Public Guardian and Trustee of British Columbia informing him they had taken charge of legal, financial and personal care decisions for his wife. This followed a notice from the IHA that it intended to issue a certificate of incapability for Delores, which is the fast-track route to guardianship.

Earlier this month, his credit union called to say the trustee was seizing the couple's joint bank account, although half the funds have since been released.

"It's Orwellian; it's Big Brother – they took everything out of my hands," the Beaver Falls resident told the Times. "People should be aware before they end up in this situation, especially seniors,"

Brent traces the troubles to a series of disagreements he had with doctors and hospital staff over his wife's care. This culminated in his refusing to pay the $32-a-day charge for her stay in the hospital's Popular Ridge Pavilion. He wanted to take her home, believing that inadequate care had resulted in her incapacity.

His litany of Delores's medical trials includes her being transferred, unbeknownst to him, to a lock-down room in the psychiatric ward to free up her regular bed. Brent says he found her there choking on her improperly-installed dentures and having a stroke.

But the retired trucking industry manager acknowledges that he also disagrees with some of his children regarding his wife's care.

"I have seen a lot of things and I have been vocal about it and that has gotten me in trouble."

Brent has consulted a lawyer regarding his difficulties and hasn't decided how he will proceed. But he would have to go to court to wrestle control of his wife's affairs from the public guardian's office.

Assuming guardianship for a family member where the required advance planning has not been done takes a minimum of 2-3 months, according to Trail lawyer Lewis Bridgeman, of McEwan Harrison and Co.

Power of attorney over legal and financial matters, combined with the "default" provisions in provincial legislation giving a spouse and then a child, authority to make health-care decisions, is usually sufficient when a person becomes incapacitated.

"Usually the default is fine. Sometimes it's not, when they have issues with their family or they have no family."

Having a "representation agreement" in place that names a decision maker in case of incapacity covers all the bases, such as being able to sell jointly-owned real estate, Bridgeman added.

Otherwise, "you need a committeeship order, and that's a court order and that's expensive."

While declining to wade into the specifics of Brent's case, Bridgman said it is "unusual" for health authorities and the public guardian to act in this manner but "it's not unheard of."

"Normally, they do it because they are worried about someone taking advantage of the patient. The public guardian will normally step aside if a close relative will take proper steps (which require a court order)."

The Interior Health Authority could not provide figures on how many individuals in its facilities are under public guardianship, and could not discuss the Brents' circumstances because of privacy regulations.

The public guardian's office says it is currently responsible for the affairs of about 800 adults in the Interior of the province.

Linda Myers, the IHA's authority on adult guardianships, said seeking such an appointment is a "last resort."

"IH would never seek the appointment of a guardian to make decisions for someone, if they have already done that planning and there is a legally authorized substitute we would call upon to make the decision.

"Unfortunately, in British Columbia many people don't do this planning in advance. If they became incapable and they didn't appoint their future decision-maker, there are times when we have no choice but to use the appointment of a guardian, so someone can be legally authorized."

Under provincial legislation, family members can only make decisions regarding medical care for a person who is no longer capable of acting on their behalf. Other matters, such as personal care decisions, such as where they live, require that a representation agreement be in place, she said.

"Ideally, every adult who is capable of making their own decisions" should talk to families about preferences and make arrangements in the event they become incapable of speaking for themselves.

"If you don't plan ahead, we have to follow the rules . . ." said Myers.

"These rules are set out in legislation and it is all about protecting vulnerable adults who aren't able to speak for themselves."

Copyright © 2008 Philip Kanigan Notary Public Inc. | All Rights Reserved