Living wills & Representation Agreements for Health care

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From: The Canadian Bar Association - April 6, 2005 Excerpt

A Living Will is a document that an adult makes to express his/her wishes regarding medical treatment, if the adult subsequently becomes unable to express his/her wishes in that regard. They can range from very general, e.g. "I do not wish heroic efforts made to keep me alive" to very specific, e.g. "I do not wish to receive any blood or blood products".

Living Wills have very limited legal effect in British Columbia. There are two main problems with Living Wills. First, the Living Will may have been made many years before the time comes to use it, so it may not reflect the adult's current wishes. Second, if the Living Will sets out specific treatments or conditions for which the adult does or does not wish to be treated, changing medical technology may radically alter the effectiveness of the Living Will.

The "Made in BC" solution to the issue of dealing with medical consent when a person subsequently becomes incapable, is the Representation Agreement. These were proclaimed in force in February 2000. A Representation Agreement is a document that allows an adult to choose a person (or persons) to make decisions for them. It is similar to an Enduring Power of Attorney in that regard, but it may also allow the Representative to make decisions regarding the adult's health and personal care. An Enduring power of Attorney is limited to financial and legal matters. The Representation Agreement may cover finances or health or both.

Serious concerns regarding the use of Representation Agreements for financial matters were raised in an October 2000 Alert Bulletin to the Profession by the Representation Agreement Act Review Committee of the Victoria, Vancouver and Okanagan Wills and Trusts Sections of the CBABC. Some of those concerns have been addressed by amendments to the Representation Agreement Act, but several remain. As a result, most if not all lawyers are continuing to recommend Enduring Powers of Attorney for asset management, and are recommending Representation Agreements only for health care decision-making.

The Representation Agreement Act sets out procedures for the creation, execution and challenges of a Representation Agreement. A lawyer must be consulted in the making of a section 9 Representation Agreement.

For more information contact your lawyer.