Planning for Personal and Health Care Decisions

Transcription

1 INCAPACITY PLANNING: THE NEW LAW PAPER 3.1 Planning for Personal and Health Care Decisions These materials were prepared by Mary B. Hamilton of Davis LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, June Mary B. Hamilton

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3 3.1.1 PLANNING FOR PERSONAL AND HEALTH CARE DECISIONS I. Introduction...2 II. Background Discussion: Consent to Health Care...3 A. Emergency or Urgent Situations (see Section 12 and 12.1 Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181)...3 B. Triage or Preliminary Examination (see Section 13 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181)...3 C. Minor Health Care or Major Health Bare (see Sections 14 and 15 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181)...4 III. Representation Agreements...5 A. Capacity Section 7 Representation Agreement Section 9 Representation Agreement...6 B. Who Can Be Named as a Representative?...7 C. Alternate Representation...7 D. Multiple Representatives...7 E. Areas of Authority Section Section F. Representation Agreement and Advance Directive G. Monitors (Section 12 of the Representation Agreement Act, R.S.B.C. 1996, c. 405) H. Drafting Issues Execution IV. Advance Directive...14 A. What is an Advance Directive? B. Capacity C. Execution D. Required Provisions in Advance Directive E. What Kind of Instructions Cannot be Included in an Advance Medical Directive? Nothing Contrary to Law Nothing in Section 5 of the Health Care Consent Regulation, B.C. Reg. 20/ F. Do Health Care Providers Always Have to Follow an Advance Directive? G. Transition H. What is the Difference between Instructions in a Representation Agreement or Advance Medical Directive and Wishes Expressed in a Personal Directive or Living Will? Current Wishes Expressed Wishes Known Beliefs and Values Adult s Best Interests I. Drafting Issues V. Nomination of Committee...19

4 3.1.2 VI. Planning Documents...19 I. Introduction When providing estate planning advice to a client, one typically discusses planning not only for death but also for the possibility of incapacity. Until the last decade, an enduring power of attorney was the only document under which someone could make decisions for an incapable person. Although the authority of that attorney was limited to financial and legal matters, on occasion, care facility or other health care provider would seek instructions from an attorney regarding medical or personal decisions. We need to make some decisions about your mother's care. Which one of you has her power of attorney? Unfortunately legally wrong. Since 2001 representatives under representation agreements have been able to make decisions about health or personal care for an incapable person but those documents have not been widely used. They have not become as mainstream as one might have expected, perhaps, because practitioners have not been sufficiently comfortable with the effect of those documents; perhaps, because there was so much uncertainty early on as to whether representation agreements were here to stay 1 and perhaps, because many of those for whom we have prepared representation agreements have not yet needed decisions made on their behalf by those representatives. The Representation Agreement Act, R.S.B.C. 1996, c. 405 will be amended as of September 1, 2011 and this paper presumes that those amendments do in fact come into force in their present form. New this fall, will be the ability of your client to make an advance directive. Pursuant to Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 which comes into force on September 1, 2011, clients will be able to make advance directives in which, subject to a few restrictions they can give or refuse consent to any health care described in that document. Presumably, as it becomes more common to have a representation agreement or advance directive, our health care providers will become familiar with these documents and will recognize that a power of attorney does not grant of authority to the attorney to make health care decisions. We need to make some decisions about your mother's care. Which one of you is her representative? Do you have a section 7 agreement or a section 9 agreement? Has mother signed an advance directive? Has she expressed any other, more recent, wishes? Which one of you is going to act as her substitute decision-maker? 1 The Representation Agreement Act was first enacted in 1993 and came into force on February 28, The Representation Agreement Act (or the regulations to it) was amended in 1996, 1999, February 2000, March 2000, April 2001 and September The Representation Agreement Act was the subject of the McClean report (February 15, 2002) which reported for the Attorney General on significant consultations with individuals and various interest groups and made a series of 40 recommendations regarding representation agreements and powers of attorney. The provincial government accepted the principal recommendation of the MacLean review in March Public consultation followed and the government responded with further changes to the Representation Agreement Act (and the regulations to it) in 2006, 2007, and The most recent of these changes are all to come into force on September 1, 2011.

5 3.1.3 This paper will discuss the advice you should be giving your clients to permit them to direct either who is going to make decisions for them or what decisions will be made, or both. The paper will focus on Representation Agreements for health and personal care, Advance Directives and Nominations of Committee. A brief section has been included about s. 7 representation agreements for financial matters because they are not being touched on elsewhere in this course. Although executing a representation agreement or an advance directive can be very useful planning and so is, in fact, encouraged by most long-term care facilities, the legislature has mandated that adults cannot be required to make either a representation agreement 2 or an advance directive 3 as a condition of receiving any good or service. II. Background Discussion: Consent to Health Care Chapter 6.1 in this material addresses the specific topic of health care consent. Before deciding whether he or she needs to name a representative or make other arrangements, your client may be interested in knowing who would have the authority to make decisions regarding his or her health care if your client were to be unable to provide consent for treatment. He or she will also be interested in knowing the legal impact of any wishes he or she expresses in an advance directive. As discussed in Chapter 6.1 the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 sets out the situations in which health care providers may provide health care to your client without your client's consent - the act deals with emergency and urgent situations, triage or a preliminary examinations, and providing major health care and minor health care. In all situations, including emergencies, if the adult is incapable of providing consent, the health care providers must first determine if a committee of person or a representative is available to consent within a reasonable time given the circumstances. A. Emergency or Urgent Situations (see Section 12 and 12.1 Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181) If person is incapable of giving or refusing consent and a committee or representative does not exist or is unavailable, a health care provider is able to provide emergency care unless according to s of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 there are reasonable grounds to believe that the person, while capable and after attaining 19 years of age, expressed an instruction or wish applicable to the circumstances to refuse consent to the health care. Your client may wish to keep on his or her person an expression of wishes that would be binding even in an urgent or emergent situation. These wishes should be by way of an advance directive; anything less formal may be binding on the representative but will not be binding on the health care provider making decisions in the absence of a representative. B. Triage or Preliminary Examination (see Section 13 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181) A health care provider may only undertake triage or any other kind of preliminary examination, treatment or diagnosis without consent by the adult or a committee or a representative if the adult s spouse, near relative or close friend indicates that he or she wants the adult to have the health care. 4 2 Representation Agreement Act s Health Care (Consent) and Care Facility (Admission) Act s Section 13 Health Care (Consent) and Care Facility (Admission) Act.

6 3.1.4 Near relative and close friend are defined in s. 1 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 come into effect on September 1, 2011: near relative, in respect of an adult who needs health care, means an adult child, a parent, a grandparent, an adult brother or sister, any other adult relation by birth or adoption, or a spouse of any of these; close friend, in respect of an adult who needs health care, means another adult who has a long-term, close personal relationship involving frequent personal contact with the adult, but does not include a person who receives compensation for providing personal care or health care to that adult. C. Minor Health Care or Major Health Bare (see Sections 14 and 15 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181) If the situation is not an urgent or emergent one and there is no committee of person or representative, a health care provider may only provide major health care or minor health care if the health care provider chooses a temporary substitute decision-maker in accordance with s. 16 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c Although not required for minor health care, if the health care provider will be providing major health care, in addition to choosing a temporary substitute decision-maker, the health care provider must inform the adult and any spouse, near relative or close friend accompanying the adult, by way of a notice in Form 1 of the Health Care Consent Regulation, B.C. Reg 20/2000. That notice advises: (1) that the adult has been determined to be incapable, (2) the name of the person chosen to be the temporary substitute decision-maker; and (3) the decision that person has made. Pursuant to s. 16(1) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, the temporary decision-maker must be the first of those on the following list who is available and qualifies: spouse child parent brother or sister grandparent grandchild anyone else related by birth or adoption close friend person immediately related by marriage Pursuant to s. 16(2) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, to be qualified as a temporary substitute decision-maker the person must: (1) be age 19 (2) have been in contact in the preceding 12 months (3) have no dispute with the adult (4) be capable of giving, refusing or revoking consent; and (5) be willing to comply with the duties in the s. 19 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181.

7 3.1.5 If your client does not want one or more of the people on this list to make decisions about his or her health care or if your client does not want the people on the list chosen in that particular order, your client will have to name a representative. He or she should also nominate that person as committee of person in case of a court application for a committee of person pursuant to the Patients Property Act, R.S.B.C. 1996, c III. Representation Agreements Representation agreements provide a mechanism whereby adults may arrange in advance how, when and by whom, decisions about their health care or personal care, the routine management of their financial affairs, or other matters will be made if they become incapable of making decisions independently. Naming a representative may be advisable for any number of reasons: your client may not want the persons set out in s. 16 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 to be his or her temporary substitute decision maker ( or maybe not want them in the order set out in s. 16); your client may want someone to be able to consent or refuse consent to a number of serious types of health care listed in the Health Care Consent Regulation, B.C. Reg. 20/2000 to which a temporary substitute decision-maker cannot give or refuse consent; your client may have ongoing health issues that may ultimately render him or her incapable of giving or refusing consent leaving him or her in a situation requiring advocacy within our health care or social services system; your client may want someone to make decisions regarding personal care such as where a person lives and with whom, managing personal care, religious practices, or making decisions about diet or dress the temporary substitute decision making system exists only for choosing decision-makers to deal with health care; the appointment of a temporary substitute decision-maker is somewhat dependent on who happens to be available at any particular time not who might be the best candidate for the job; a representation agreement provides a mechanism to avoid the need for a court application pursuant to the Patients Property Act, R.S.B.C. 1996, c. 349 to appoint a committee of person for an adult who is incapable of making decisions independently. A. Capacity Is your client capable of naming a representative under s. 7 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 or under s. 9 of the Representation Agreement Act, R.S.B.C. 1996, c. 405? 1. Section 7 Representation Agreement Section 3(1)(a) of the Representation Agreement Act, R.S.B.C. 1996, c. 405 includes a presumption of capacity. Until the contrary is demonstrated, every adult is presumed to be capable of making, changing and revoking representation agreements. According to s. 3(1)(b) of the Representation Agreement Act, R.S.B.C. 1996, c. 405, until the contrary is demonstrated, every adult is also presumed to be capable of making decisions about personal care, health care and legal matters and about the routine management of their own financial affairs. If a person is of diminished capacity, he or she may still be able to make a representation agreement under s. 7 of the Representation Agreement Act, R.S.B.C. 1996, c Section 8(1) of the Representation Agreement Act, R.S.B.C. 1996, c. 405 specifically provides that an adult may make a

8 3.1.6 representation agreement consisting of one or more provisions from s. 7 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 even though the adult is incapable of: (1) making a contract, (2) managing his or her health care, personal care or legal matters, (3) the routine management of his or her financial affairs. The above provision includes the amendment coming into effect on September 1, 2011 which deleted managing his or her financial affairs, business or assets and instead included the routine management of his or her financial affairs. One presumes the modification, perhaps, further lessens the threshold capacity necessary to make a representation agreement pursuant to s. 7 of the Representation Agreement Act, R.S.B.C. 1996, c All relevant factors must be considered to determine whether the adult is capable of making a representation agreement pursuant to s. 7 of the Representation Agreement Act, R.S.B.C. 1996, c Examples of those factors are set out in s. 8(2) of Representation Agreement Act, R.S.B.C. 1996, c. 405: (a) does the adult communicate a desire to have the representative make decisions, help make decisions or stop making decisions? (b) does the adult demonstrate choices and preferences and can the adult express feelings of approval or disapproval of others? (c) is the adult aware that making the representation agreement means the representative may make decisions or choices that affect the adult? and changing or revoking the representation agreement means the representative may stop making decisions or choices that affect the adult? (d) is the relationship between the adult and the representative characterized by trust? These provisions create a conundrum for lawyers. Although the Representation Agreement Act, R.S.B.C. 1996, c. 405 permits an adult may make a representation agreement even though he or she lacks capacity to enter into a contract, that same adult cannot retain legal services with respect to the making of that representation agreement unless he or she has the capacity to retain a lawyer. It seems counter-intuitive to provide that adults who have limited capacity and are therefore among our most vulnerable in society may make representation agreements even when they cannot retain legal advice about those agreements. 2. Section 9 Representation Agreement In a representation agreement made under s. 9 of the Representation Agreement Act, R.S.B.C. 1996, c. 405, your client may authorize his or her representative to do anything necessary regarding personal care or health care including authorizing decisions about end of life and other very serious matters set out in the regulations to the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 such as abortion, electroconvulsive shock treatment, experimental treatment, and medical research. Because the potential authority is so broad, the s. 10 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 requires the adult to have capacity to understand the nature and consequences of the proposed agreement. A temporary substitute decision-maker chosen under s. 16 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 does not have authority to give substitute consent regarding the decisions about these very serious matters. Your client must appoint a representative under a section 9 representation agreement if your client may, while incapable, want those particular types of health care.

9 B. Who Can Be Named as a Representative? Section 5 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 provides that an adult may name any individual who is 19 years of age or older except a paid caregiver or an employee of a care facility (unless the caregiver or employee is a child, parent or spouse of the adult). An adult may also be named the Public Guardian and Trustee or a credit union or trust company (as long as the credit union or trust company is not given authority to make health care or personal care decisions). C. Alternate Representation Your client may name more than one representative. Those representatives could be named as alternates provided the agreement specifies the circumstances in which the alternate would become the representative. For example, you might specify that the person named as alternate will become the representative if the originally named representative dies, or is unwilling or unable to act as representative. You should also specify the basis upon which a third party would know that the originally named representative is no longer willing or able to act as representative; perhaps by way of a statutory declaration but sworn by whom? It may be that you will recommend that the alternate be able to swear the statutory declaration so as to avoid the challenge of locating a missing representative who is otherwise incommunicado or having to prove that the originally named representative has, himself or herself, become incapable. D. Multiple Representatives Your client may name multiple representatives assigning the same or different areas of authority to each named representative. 5 If all representatives are to have the same areas of authority, they must act unanimously unless the document says otherwise. 6 Your client may prefer to specify that the majority of representatives may make decisions or that each representative may act separately. Each representative named must sign the representation agreement and complete a certificate in the prescribed form (see Representation Agreement Act Regulations). E. Areas of Authority 1. Section 7 A representation agreement made under s. 7 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 may give the representative authority to make decisions regarding any of 7 : (1) personal care 8 which is defined in the amendments to the Representation Agreement Act, R.S.B.C. 1996, c. 405 as including matters respecting: (a) the shelter, employment, diet and drafts of an adult, (b) participation by an adult in social, educational, vocational and other activities, (c) contact or association by an adult with other persons, (d) licenses, permits, approvals or other authorizations of an adult to do something 5 Representation Agreement Act s. 5(2). 6 Representation Agreement Act s. 5(3). 7 Representation Agreement Act s. 7(1). 8 Representation Agreement Act s. 1

10 3.1.8 (2) health care including: (a) major health care defined in the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 as (i) major surgery, (ii) any treatment involving a general anesthetic (iii) major diagnostic or investigative procedures, or (iv) any health care designated by regulation as major health care which at this time are: radiation therapy; intravenous chemotherapy; kidney dialysis; electroconvulsive therapy; laser surgery: (b) minor health care defined in the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 means any health care that is not major health care, and includes: (i) routine test to determine if health care is necessary, and (ii) routine dental treatment that prevents her treats a condition or injury caused by disease or trauma, for example, (A) cavity fillings and extractions done with or without a local anesthetic, and (B) oral hygiene inspection; but not the serious types of health care referred to in the regulations listed in section 5 of the Health Care Consent Regulation, B.C. Reg. 20/2000: abortion unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the adult for whom it is proposed; electroconvulsive therapy unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the adult for whom it is proposed; psychosurgery [defined in s. 1(1) of the Regulations as the destruction or removal of normal brain tissue, or the insertion of indwelling electrodes to alter behaviour or treat psychiatric illness]; removal of tissue from a living human body for implantation in another human body or for medical education or research; experimental health care involving a foreseeable risk to the adult for whom the health care is proposed that is not outweighed by the expected therapeutic benefit [defined in s. 18(1)(4)]; participation in a health care or medical research program that has not been approved by a committee referred to in s. 2 [of the Regulations]; any treatment, procedure, or therapy that involves using aversive stimuli to induce a change in behaviour. (3) routine management of the adult's financial affairs, including: payment of bills, receipt and deposit of pension and other income, purchases of food, accommodation and other services necessary for personal care, and

11 the making of investments, all other activities set out in s. 2(1) of the Representation Agreement Regulation, B.C. Reg. 199/2001 as constituting routine management of the adult s financial affairs. For greater certainty the activities under s. 2(1) of the Representation Agreement Regulation, B.C. Reg. 199/2001 do not include any of those listed under s. 2(2) such as: using the adult s credit card or line of credit, instituting a new loan including a mortgage, purchasing or disposing of real property, guaranteeing a loan for a third party, lending personal property or disposing of it by gift other than making a charitable donation consistent with the adult s past practices and in an amount such that the total amount donated does not exceed three percent of the adult s taxable income for that year, revoking or amending a beneficiary designation or creating a new beneficiary to designation that is not the result of the conversion of an RRSP to a RRIF or annuity or creating a new beneficiary designation in respect of a RRIF or annuity consistent with the beneficiary designation made by the adult in respect of that RRSP (4) obtaining legal services for the adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the adult s behalf 2. Section 9 A representation agreement made under s. 9(1) of the Representation Agreement Act, R.S.B.C. 1996, c. 405 may authorize a representative to: (1) do anything that the representative considers necessary relation to the personal care or health care of the adult which would include giving or refusing consent to health care necessary to preserve life, or (2) do one or more things, including any of the following: (a) decide where the adult is to live and with whom, including whether the adult should live in a care facility; (b) decide whether the adult should work and, if so, the type of work, the employer, and any related matters; (c) decide whether the adult should participate in any educational, social, vocational or other activities; (d) decide whether the adult should have contact or associate with another person; (e) decide whether the adult should apply for any license, permit, approval or other authorization required by law for the performance of an activity; (f) make day to day decisions on behalf of the adult, including decisions about the diet or dress of the adult; (g) give or refuse consent to health care for the adults, including giving or refusing consent, in the circumstances specified in the agreement, to specify kinds of health care, even though the adult refuses to give consent at the time that health care is provided;

12 (h) despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adults. (3) According to s. 9(2) of the Representation Agreement Act, R.S.B.C. 1996, c. 405 the representative may not do any of the following unless the representation agreement specifically provides that the representative may: (a) give or refuse consent to particular health care prescribed under s. 34(2)(f) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 and listed in Health Care Consent Regulation, B.C. Reg. 20/2000 s. 5(1), namely: abortion unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the adult for whom it is proposed; electroconvulsive therapy unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the adult for whom it is proposed; psychosurgery [defined in s. 1(1) of the Regulations as destroying, removing or interrupting the continuity of normal brain tissue, or inserting indwelling electrodes in the brain to alter behaviour or treat psychiatric illness]; removal of tissue from a living human body for implantation in another human body or for medical education or research; experimental health care involving a foreseeable risk to the adult for whom the health care is proposed that is not outweighed by the expected therapeutic benefit [defined in s. 18(1)(4)]; participation in a health care or medical research program that has not been approved by a committee referred to in s. 2 [of the Regulations]; any treatment, procedure, or therapy that involves using aversive stimuli to induce a change in behaviour. (b) make arrangements for the temporary care and education of the adults minor children, or any other persons who are cared for or supported by the adult, or (c) interfere with the adults religious practices. (4) The representation agreement may not: (a) authorize a representative to refuse consent to admission to a designated facility under the Mental Health Act nor to the provision of professional services care or treatment under the Mental Health Act if the adult is detained in a designated facility or if the adult is released on leave or transferred to an approved home pursuant to certain provisions of the Mental Health Act (s. 11(1) of the Representation Agreement Act, R.S.B.C. 1996, c. 405); or (b) unauthorize a representative to consent to sterilization for non-therapeutic purposes (s. 11(2) of the Representation Agreement Act, R.S.B.C. 1996, c. 405). F. Representation Agreement and Advance Directive Instructions in an advance directive will be treated as the adult s expressed wishes and will be binding on any representative but the representative will still need to provide substitute consent to any health care unless in accordance with s of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 the adult, in a representation agreement, stated that:

13 a health care provider may act in accordance with the health care instructions set out in the advance directive without consent of the adult's representative If that provision is included, the health-care provider in accordance with s of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181: 1. may provide health care to that adult if the adult has given consent to that health care in the adult s advance directive, and 2. must not provide health care to that adult if the adult has refused consent to that health care in the adult s advance directive. The adult should consider whether he or she would want the health-care provider to act in accordance with an advance directive without consulting a representative. If so, the representation agreement should include the above statement. G. Monitors (Section 12 of the Representation Agreement Act, R.S.B.C. 1996, c. 405) Section 12 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 provides that appointing a monitor in a representation agreement is only mandatory if the representation agreement is a s. 7 agreement for the routine management of financial affairs naming either an individual representative or more than one representative and they do not have to act unanimously to make decisions and the representative is not the spouse, the Public Guardian and Trustee, a trust company or credit union. In situations where the legislation requires a monitor and the named monitor resigns, dies, becomes incapable or is unable to act, the authority given to each representative is suspended until a new monitor is appointed9. If no monitor is named and one is required because there are provisions regarding financial affairs, the representative is not able to exercise his or her authority regarding those provisions. 10 The monitor is charged with making reasonable efforts to determine whether a representative is complying with his or her duties under the Representation Agreement Act, R.S.B.C. 1996, c If the monitor has reason to believe that a representative is not complying with his or her duties, the monitor may require that representative produce accounts and report to the monitor and must notify the adult, and all representatives including alternate representatives named in the agreement. If the monitor is still concerned that the representative is not complying with his or her duties, the monitor must also promptly inform the Public Guardian and Trustee. 12 The monitor is not liable for any act or failure to act of a representative if the monitor acts honestly and in good faith and exercises the care, diligence and skill of a reasonably prudent person. 13 When advising potential monitors, lawyers might caution them that no common law exists setting out the scope of the reasonable efforts required of a monitor to ensure that the representative is complying with his or her duties. For example, at what stage should a monitor require accounts and reports from the representative and how long should a monitor persevere in his or her inquiries of the representative before promptly informing the Public Guardian and Trustee that the representative is not complying with his or her duties under s. 16 of the Representation Agreement Act, R.S.B.C. 1996, c. 405? 9 Representation Agreement Act s. 12(8). 10 Representation Agreement Act s. 12(2). 11 Representation Agreement Act s. 20(1). 12 Representation Agreement Act s. 20(5). 13 Representation Agreement Act s. 25.

14 H. Drafting Issues The Legislature has not yet provided a statutory form of representation agreement. Until now, every practitioner has been left to his or her own devices with respect to the drafting of a representation agreement. Most have been mindful of the nomenclature set out in the Representation Agreement Act, R.S.B.C. 1996, c. 405 providing that the adult will make a Representation Agreement naming a representative and will typically give the representative the broadest authority possible under the Representation Agreement Act, R.S.B.C. 1996, c Execution Section 13 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 provides that a representation agreement must be in writing, signed and witnessed in accordance with that section. The representation agreement must be signed by the adult and each representative. The representatives need not be present together with the adult. The representative and alternate representative, if any, must sign a certificate (Form 1) but need not have their signatures witnessed. The certificate of representative or alternate representative acknowledges that the representative is an adult, does not provide personal care or health care services to the adult, for compensation, and is not an employee of a facility in which the adult resides and through which he or she receives personal care or health care services. The representative or alternate representative must also acknowledge that he or she has read and understand, and agrees to accept, the duties and responsibilities of a representative as set out in s. 16 of the Representation Agreement Act, R.S.B.C. 1996, c The certificate must also set out the contact information of the representative or alternate representative including his or her name, telephone number, address and date of birth. The monitor, if any, must sign a certificate (Form 2). The adult s signature must be witnessed by two witnesses each of whom must sign the representation agreement. Only one witness is required if the witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia. Effective September 1, 2011, only witnesses to a s. 7 representation agreement must sign a certificate of witness (Form 4). No witness certificates will be required for a section 9 representation agreement. If an adult is physically incapable of signing an agreement, the agreement may be signed on behalf of the adult if the adult is present and directs that the agreement be signed and the person signing the agreement is an adult who is not named as a representative or alternate representative and is not a witness to the agreement. The person signing on behalf of the adult must sign a certificate (Form 3). areas of authority and decision-making: specify all s. 9(2) powers or only some of them; assign different areas of authority to each representative; address decision-making between or among representatives whether unanimity or majority or each representative may decide separately if all or part of the same area of authority is assigned to two or more representatives; express wishes: Your client may wish to express certain wishes in his or her representation agreement regarding particular health care. Those wishes can be binding on the representative. Section 16(2) of the Representation Agreement Act, R.S.B.C. 1996, c. 405 provides that a representative must comply with the wishes expressed by the adult while capable. Section 16(2.1) of the

15 Representation Agreement Act, R.S.B.C. 1996, c. 405 provides that the representative need not consult with the adult to determine his or her current wishes and comply with those wishes if it is reasonable to do so but only if the representation agreement provides that: in exercising the authority given to the representative under section 9 of the Representation Agreement Act, R.S.B.C. 1996, c. 405, the representative need only comply with any instructions or wishes the adult expressed while capable. Section 16 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 sets out the duties of representatives. Some practitioners will want to include specific reference to those duties so that the representative who signs a representation agreement will have those duties set out in his or her copy of the representation agreement. alternate representatives: name alternate representatives and specify how the alternate takes over as representative remuneration: provide that the representative or monitor will be reimbursed for any expenses reasonably incurred in performing the duties or exercising the powers of the adult s representative or monitor (s. 26(2) of the Representation Agreement Act, R.S.B.C. 1996, c. 405); no remuneration may be paid to the representative, alternate representative or monitor unless (pursuant to s. 26(1) of the Representation Agreement Act, R.S.B.C. 1996, c. 405) the representation agreement sets out the amount or the rate and the court authorizes the remuneration to be paid; notwithstanding any provision to the contrary and a representation agreement, the representative cannot be paid for any decision made or action taken regarding health care under Part 2 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c monitor: will the adult be naming a monitor? termination: some agreements will set out the events that terminate the authority of a representative with respect to certain provisions found in s. 28 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 and the events found at s. 29 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 that cause a representation agreement to end effective date: s. 15 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 permits the representation agreement become effective on the date it is executed or allows for the later triggering of the agreement by a subsequent event such as incapacity provided that the agreement specifies how that event is to be confirmed and by whom. For example, one might provide that the representation agreement is to be effective when the adult s incapability is confirmed, in writing, by two medical professionals who have each examined the adult personally. One may consider whether or not one of medical professionals should be the adult's family physician and whether or not the medical professionals need to be licensed to practice medicine in BC. One might also consider whether the adult would like to be able to trigger the representation agreement at a later date, perhaps by completing a certificate or other endorsement attached to the agreement. advance directive: does the adult wish to include the following paragraph referred to s of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181: a health care provider may act in accordance with the health care instructions set out in the advance directive without consent of the adult's representative

16 A. What is an Advance Directive? IV. Advance Directive As of September 1, 2011, your clients will be able to predetermine what health care they may wish to have, or not have, at a later time when they are no longer capable of giving instructions. Any adult will be able to make an advance directive in which he or she may give or refuse consent to any health care in the future provided that any instructions will not be valid and will be severed from the advanced directive if carrying out those instructions would be contrary to law. Many advance directives will address end-of-life decisions but the document may also be used to address specific types of treatments. For example, if your client does not wish to have a particular form of treatment or medication regardless of the consequences, he or she will be able to set out those details in an advance directive. B. Capacity To make a valid advance directive, your client must be capable of understanding the nature and consequences of the proposed advance directive including the scope and effect of the health care instructions and the fact that the health care provider may treat your client without choosing a temporary substitute decision-maker who might otherwise consider the circumstances at the time. 14 If your client has both an advance directive and a representation agreement then the health care provider must seek consent from the representative and the instructions in the advance directive will be treated as wishes expressed while capable which are binding on a representative. 15 Your client may, however, also provide in his or her representation agreement that a health care provider can act in accordance with the advance directive without the need to seek consent of the representative. 16 C. Execution Section 19.5 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 sets out the execution requirements for an advance directive. According to s. 19.5(1) the document must be in writing and be signed and dated by: the adult in the presence of two witnesses, and both witnesses in the presence of the adult. Only one witness is required if the witness is a lawyer or a notary public in good standing (s. 19.5(4)). The witnesses must be adults 17 and cannot be persons who are providing personal care, health care or financial services to the adult for compensation, except for lawyers and notaries public, and they cannot be a spouse, child, parent, employee or agent of such a person. 18 The witnesses must understand the type of communication used by the adult (or receive the assistance of an interpreter) Health Care (Consent) and Care Facility (Admission) Act s Health Care (Consent) and Care Facility (Admission) Act s. 19.3(1)(b). 16 Health Care (Consent) and Care Facility (Admission) Act s. 19.3(2). 17 Section 19.5(5)(c). 18 Section 19.5(5)(a)(b). 19 Section 19.5(5)(c).

17 Similar to the rules for a representation agreement, s. 19.5(3) provides that another person may sign the advance directive on behalf of the adult if: the adult is physically incapable of signing the advance directive, the adult is present and directs that the advance directive be signed, and the signature of the person signing on behalf of the adult is witnessed as if that signature were the adult s signature. 20 A witness to the signing of the advance directive, or a person prohibited from acting as a witness under s. 19.5(5), cannot sign on behalf of the adult. 21 D. Required Provisions in Advance Directive Under s. 19.4(1) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, an advance directive must include an acknowledgment indicating that the adult knows that: a health care provider may not provide health care to the adult for which the adult refuses consent in the advance directive (treatment refusal is binding); and a person may not be chosen to make decisions on behalf of the adult in respect of any health care for which the adult has given or refused consent in the advance directive. E. What Kind of Instructions Cannot be Included in an Advance Medical Directive? 1. Nothing Contrary to Law Subject to s. 9(1.1) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, an advance directive can give or refuse consent to any health care described in the advance directive unless the instruction is to do anything that is prohibited by law or the instruction is to omit to do anything required by law 22. Such instructions are not valid and will be severed from the advance directive. 2. Nothing in Section 5 of the Health Care Consent Regulation, B.C. Reg. 20/2000 Under s. 9(1.1) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, an adult may not consent in an advance directive to certain matters set out in section 5 of the regulations to the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 including: abortion unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the adult for whom it is proposed; electroconvulsive therapy unless recommended in writing by the treating physician and at least one other medical practitioner who has examined the adult for whom it is proposed; psychosurgery [defined in s. 1(1) of the Regulations as destroying, removing or interrupting the continuity of normal brain tissue, or inserting indwelling electrodes in the brain to alter behaviour or treat psychiatric illness]; 20 Section 19.5(2). 21 Section 19.5(3). 22 Health Care (Consent) and Care Facility (Admission) Act s. 19.2(2).

18 removal of tissue from a living human body for implantation in another human body or for medical education or research; experimental health care involving a foreseeable risk to the adult for whom the health care is proposed that is not outweighed by the expected therapeutic benefit [defined in s. 18(1)(4)]; participation in a health care or medical research program that has not been approved by a committee referred to in s. 2 [of the Regulations]; any treatment, procedure, or therapy that involves using aversive stimuli to induce a change in behaviour. If an adult includes a provision in his or her advance directive consenting to any of the above treatments, that consent will not be valid. F. Do Health Care Providers Always Have to Follow an Advance Directive? Section 19.8 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 provides that health care providers do not have to follow an advance directive if: (a) the instructions in the advance directive do not address the health care decision to be made; (b) the instructions in the advance directive are so unclear in relation to a health care decision that it cannot be determined whether the adult has given or refused consent; (c) since the adult made the advance directive, and while the adult was still capable, the adult s wishes, values, or beliefs in relation to a health care decision have significantly changed, and this change is not reflected in the advance directive; (d) since the advance directive was made, there have been significant changes in medical knowledge, practice, or technology in relation to health care for which the adult has given or refused consent, and that these changes might substantially benefit the adult and the advance directive did not expressly states that the instructions given in the advance directive apply regardless of any change in medical knowledge, practice, or technology. If the health-care provider is not going to follow the advance directive, the health care provider must obtain substitute consent from a committee, representative or a temporary substitute decision-maker under s. 16 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 despite any instruction or wish expressed in the advance directive about who may give substitute consent if the circumstances set out above apply except that an adult may provide in an advance directive that the instructions in the advance directive apply regardless of any change in medical knowledge, practice or technology. If your client wants the advance directive to be binding regardless of any changes in medical knowledge, practice or technology, he or she may expressly state in an advance directive that the instructions given in the advance directive apply regardless of any change in medical knowledge, practice or technology. G. Transition The Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 provides that written instructions made by a capable adult prior to September 1, 2011 will be deemed to be advance directives if they were made and executed in accordance with ss in 19.5 of the Health Care

19 (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c Those sections require the acknowledgment referred to above and that the document be signed and dated by: (a) the adult in the presence of two witnesses, and (b) both witnesses in the presence of the adult. Only one witness is required if the witness was a lawyer or a notary public in good standing (s. 19.5(4)). H. What is the Difference between Instructions in a Representation Agreement or Advance Medical Directive and Wishes Expressed in a Personal Directive or Living Will? If an adult is incapable and needs health care, a health care provider is to make a reasonable effort to determine whether the adult has a committee or representative. If the health-care provider does not know of a committee or a representative, s of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, the health-care provider may provide whatever health care the adult consented to in his or her advance directive and must not provide any health care the adult refused in his or her advance directive. Unless the circumstances set out in s of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 apply such that the health care provider does not have to follow the advance directive. If the adult has a representative or if the health-care provider chooses a temporary substitute decision-maker, the representative or temporary substitute decision-maker must make decisions for the adult based on the hierarchy of instructions, expressed wishes, known beliefs and values and best interests as set out below. The criteria for the representative or the temporary substitute decision-maker are slightly different but the premise is that any current wishes will override an advance directive or living will but that an advance directive or living will be binding if the representative or temporary substitute decision-maker cannot ascertain the current wishes of the adult. 1. Current Wishes The representative must consult with the adult, to the extent reasonable, to determine current wishes and comply with those wishes if it is reasonable to do so unless the representative is acting within the authority of a s. 9 representation agreement and that agreement provides that the representative need only comply with any instructions or wishes the adult expressed while capable. 24 A temporary substitute decision-maker must consult with the adult, to the greatest extent possible, and must comply with any instructions or wishes the adult expressed while capable. If the temporary substitute decision-maker was authorized by the Public Guardian and Trustee, he or she must also consult with, to the greatest extent possible, with any near relative or close friend and must comply. And with any near relative or close friend of the adults who asks to assist and must comply with any instructions or wishes the adult expressed while capable Expressed Wishes According to s. 16 (3) of the Representation Agreement Act, R.S.B.C. 1996, c. 405, if the representative cannot determine the adults current wishes or it is not reasonable to comply with those wishes, unless 23 Health Care (Consent) and Care Facility (Admission) Act s and health s Representation Agreement Act s. 16(2) and 16(2.1). 25 Health Care (Consent) and Care Facility (Admission) Act s. 19(1).