Overview of New Incapacity Laws

On September 1, 2011, significant changes to the law in British Columbia in the area of substitute decision making came into effect. The changes will have an impact on the enduring power of attorney and the representation agreement, the two commonly used tools for those making decisions for others. They will also introduce a new tool, the “advance directive”.

ENDURING POWERS OF ATTORNEY

A power of attorney is a legal document which creates an agency relationship between the person appointing (the “principal” or “donor”) and the appointee (the “agent” or “attorney”). It is a basic principle of agency law that an agent may only take steps authorized by the principal. Thus, where the principal becomes unable to direct the attorney, either because of physical or mental incapacity, the common law does not permit the attorney to continue to act under the terms of the power of attorney.

There is an important statutory exception to this rule: if the power of attorney states that it is to continue despite incapacity, the attorney may continue to act. This is known as an “enduring power of attorney” and is a useful tool for an adult to plan for substitute decision making in the event of a future incapacity.

Enduring powers of attorney have been authorized in B.C. since 1971. The “enduring” component is key: without that the phrase “endures during any subsequent mental infirmity”, the attorney would not be able to exercise the power given to him or her should incapacity ensue.

Unfortunately, the statutory provisions governing an enduring power of attorney have been minimal: section 8 of the Power of Attorney Act merely authorizes them, without giving any guidance on formalities or use.

As a result of this lack of statutory guidance, the duties and rights of an attorney appointed in an enduring power of attorney have, over the past forty years, been shaped by the courts. But the courts are designed to resolve particular problems which arise, and not create a harmonized set of rules.

With the changes to the Power of Attorney Act, individuals wanting to appoint a substitute decision maker, and those appointed, will have clear guidance to assist in the making and using of enduring powers of attorney.

Click here for more information for adults contemplating having a power of attorney.

Click here for more information for persons considering being appointed as an attorney.

REPRESENTATION AGREEMENTS

Representation agreements were first introduced in 2001. The B.C. statute authorizing such agreements took a different approach from other jurisdictions (where medical directives or powers of attorney for heath care are more common). The reasons were societal and philosophical and are discussed in a report undertaken by Professor Albert McClean (Download Here).

Professor McClean’s report made a number of important recommendations to improve the Representation Agreement Act, recommendations which have been largely adopted in the amendments to the Act which came into force on September 1, 2011.

The amendments will simplify the formalities of the representation agreement itself, a welcome change from the former onerous formalities. However, there is now a new requirement for record-keeping (which can be specifically waived in the representation agreement).

The amendments will also clarify the authority which may be given to a representative by both capable and incapable adults. For the capable adult, a representative may be authorized to do anything the representative considers necessary in relation to the personal care or health of the adult, or may be authorized to make any of the following decisions:

• Where the adult should live;
• Whether the adult should work;
• Whether the adult should participate in educational, social, vocational or other activities
• Who the adult should associate with;
• Whether the adult should apply for a licence, permit or authorization;
• Day-to-day decisions about diet and dress;
• Give or refuse consent for health care; and
• Physically restraining or moving the adult.

The changes to the law should make representation agreements more accessible to more adults, and when properly used, enhance the health care of the adult.

ADVANCE DIRECTIVES

A document often referred to as a “living will”, is commonly used to communicate end of life choices. The living will has historically had no legal effect (although it has enjoyed some recognition in the Representation Agreement Act, as a representative has a duty to follow any express wishes).
The advance directive introduced in the September 1, 2011 legislation formally recognizes a document in which the adult may give or refuse consent to any health care described in the advance directive. The only restriction is that it cannot authorize anything prohibited by law or omit anything required by law. The advance directive also has specific formalities which must be met to be effective.

For adults who do not have a representation agreement, or have no one to name as a representative, the advance directive will be an opportunity to express wishes for health care, including end of life choices. Any health care provider must honour the terms of the advance directive and may safely rely upon it in carrying out the adult’s wishes.

There are some exceptions to this rule. First, where there is a representative, the health care provider must still obtain that person’s consent to the provision or denial of care (unless such consent is specifically waived in the agreement). Second, if the health care provider reasonably believes that the adult’s wishes, values, or beliefs have changed, or if there have been significant changes to health care, medical knowledge, or technology that would benefit the adult for which the adult has given or refused consent, the health care provider may decline to follow the advance directive.