In the event that you become incapable of making health care decisions on your down, someone will be called upon to make decisions for you. You likely have a trusted person in mind that you would want to make decisions on your behalf. Without a representation agreement, however, there is no guarantee that that person will be appointed.
What is a representation agreement?
A representation agreement gives you control over who can manage your health care and personal affairs if you cannot. Our health care lawyers recently discussed the two types of representation agreements in BC. Essentially, a representation agreement authorizes the person of your choice to “step into your shoes” and act on your behalf should you become incapable due to age, illness, or injury. The person you appoint must follow the specific instructions or wishes set out in the representation agreement.
Who makes decisions for me if I do not have a representation agreement?
If you do not have a representation agreement in place, your health care provider will have to choose a temporary substitute decision-maker (“TSDM”) to make health care decisions for you if you are too ill or otherwise unable to communicate your health care wishes. BC health care law sets out a default list, in this priority order:
- your spouse
- your child
- your parent
- your brother or sister
- your grandparent
- your grandchild
- anybody related to you by birth or adoption
- your close friend
- a person immediately related to you by marriage
If there is a dispute about who the decision-maker should be (for example, between two of your children or two of your siblings at the same priority level on the list), or if no one on the default list is available or qualified to act as your TSDM, the health care provider must contact the Public Guardian and Trustee (“PGT”) who will either act as your TSDM or make the choice as to who acts as your TSDM.
Significance of a representation agreement
A representation agreement permits you to keep control over the choice of who can make health care decisions for you. It also offers a number of significant benefits over BC’s default regime. Consider the following:
- A representative appointed by you is authorized to make personal care decisions about such things as accommodation and food. A TSDM cannot make decisions about personal care needs.
- A representative appointed by you in a Section 9 representation agreement can make major and minor health care decisions, including refusing life support if that accords with your wishes. A TSDM is only authorized to make certain health care decisions and can only make end-of-life treatment decisions on your behalf if the substantial majority of your health care providers agree.
- A representative appointed by you can assist at any time, even if you have not lost capacity. As you age, or if you become ill or injured, you may simply want help with your personal affairs and daily care needs. A representative appointed under a representation agreement can do that. Your representative can also be an advocate for your health care needs without having to wait for you to become incapable. A TSDM is only able to act on your behalf if you are incapable or unable to communicate your health care wishes on your own.
Talk to our health care lawyers
Plan ahead and take control over who will make personal and health care decisions on your behalf if you are unable to do so. Consult with our experienced health care lawyers today to learn more about planning options including representation agreements, advance directives, and enduring powers of attorney.
