Thank you to Sasha Nowicki, a lawyer with Swift Datoo Law Corporation, for taking the time to provide her expertise and knowledge to help us understand, “Why we need an enduring power of attorney and a representation agreement.”
Most people are familiar with the concept of a Power of Attorney. It’s a legal document you can use to give someone else authority to make financial and legal decisions for you and to deal with your real estate. What it doesn’t do is give authority to make your health care decisions. You need another document to do that. In BC it’s called a Representation Agreement. Both of these documents are critical pieces in your incapacity planning.
Powers of Attorney can be general or limited, and they can also be ‘enduring.’ General Powers of Attorney give another person broad powers to deal with all of your assets. A limited Power of Attorney would deal with one or a few specific tasks that you want your attorney to be responsible for. It can also specify a timeframe during which they are allowed to exercise their authority. An example would be if you were away on vacation and your house was for sale, and you’d like your friend to be able to sign a purchase and sale agreement if an offer comes in while you’re away.
If the Power of Attorney doesn’t say that it’s enduring, then it’s only in effect when you are mentally capable. So once you become mentally incapable, your attorney can’t act under its authority anymore. An ‘enduring’ Power of Attorney is usually effective once you sign it and specifically says that it continues to be effective if you later become mentally incapable. When we talk about incapacity planning, we are usually talking about Enduring Powers of Attorney that are effective immediately and general in nature.
A Representation Agreement is the only legal document in BC that allows you to give authority to someone else to make decisions for you regarding your health and personal care. This person is called your representative. You can appoint one or more representatives and you can appoint an alternate if your first choice dies or becomes incapacitated. The Representation Agreement legally appoints your representative or representatives to be your substitute so that they can make decisions on your behalf in case you become injured, sick, disabled, or otherwise incapable of taking care of your health and personal care.
A Representation Agreement can give broad powers to your representative to make or help you make health care decisions on things like surgery, medications, dental and eye care, and end-of-life comfort care. It can also give them broad powers to make or help you make personal care decisions on things like your diet and living arrangements.
It’s important to talk to your representative about any specific instructions and wishes you have about your health and personal care. Some people may choose to write down their instructions. This can be done in a document called an Advance Directive. But don’t confuse a Representation Agreement and an Advance Directive. Only a Representation Agreement appoints a person to act on your behalf to make all your health and personal care decisions if you can’t.
Sasha Nowicki is a lawyer with Swift Datoo Law Corporation in Courtenay.
Wendy Johnstone is a gerontologist and is the founder of Keystone Eldercare Solutions. Her column runs in the Comox Valley Record every second Thursday.