APRIL 16 IS ADVANCE CARE PLANNING DAY.
Advance Care Planning Tools: Backgrounder
Why Advance Care Planning is Important
One of the most important and caring things people can do for themselves—and their loved ones—is to prepare in advance for a time when they may not be able to express their own needs and wishes.
Expressing and legally documenting preferences and instructions can protect individuals and their families from financial abuse or exploitation. Designating health care decision-makers or instructions can create peace-of-mind, minimize dissension and anguish among friends and family, and ensure compliance on critical decisions.
It also saves valuable time and resources in our health care system to help manage escalating health care costs.
Advance planning can be a very comforting and satisfying process, especially when it is managed by an experienced and trusted legal professional. BC Notaries understand the sensitivities and complexities of these planning decisions and will ensure that their clients’ intentions are clear and properly documented—so the clients can rest assured about the future.
Who Makes Decisions?
The following is the legal hierarchy of decision-makers when the adult is unable to express his or her own decisions.
- Committee of Person (Personal Guardian appointed by the Court)
- Representative, designated under a Representation Agreement
- Advance Directive (a legal document that specifies instructions directly to health care professionals so there is no decision-maker)
- When none of the above exists, next-of-kin will be the legal Temporary Substitute Decision Maker (TSDM). They are, in order—spouse, adult child, parent, sibling, grandparent, grandchild, anyone else related by birth or adoption, close friend, a person immediately related by marriage (in-laws, step-parents, step-children). Note: The TSDM must have had contact with the adult in the past year and not be in a conflict with the adult.
- Health care provider, in emergencies
Advance Care Planning Tools
Following are some of the tools available to British Columbians.
Power of Attorney
A Power of Attorney allows a capable adult to appoint a person or persons to handle his or her financial and legal matters in the event the adult is unable to do so or needs assistance. The document also specifies whether those individuals are allowed to act separately or are required to act together. Because of the financial authority conveyed, it is critical that the adult fully understands the powers he or she is granting with this document and that the adult has complete trust in the person appointed.
The Power of Attorney also allows the adult to compensate a designated “attorney” for performing actions on his or her behalf.
Who should have a Power of Attorney?
This document has great value for anyone
- who wants to ensure that a trusted person will take care of bill-paying, correspondence, and financial management in the event of incapacity or absence;
- who may need assistance with daily finances, now or in the future;
- who wants to avoid the very lengthy and expensive process of a court-appointed committee, should the adult suddenly become incapable;
- who wants to avoid having the Public Guardian and Trustee take over his or her affairs.
The Advance Directive document gives instructions to doctors, nurses, and other health care providers for a person’s future health care. It ensures the adult’s wishes will be carried out by health care providers if the person is unable to express them in the future.
Who should have an Advance Directive?
People who want to ensure that their wishes are followed, particularly
- if their family’s wishes differ from their own;
- if they have no family members that could be appointed as their representative;
- if they have concerns that differing opinions among their family members might cause conflict if a decision must be made about where the adult should live or if end-of-life decision-making is involved.
A Representation Agreement appoints a representative or multiple representatives to make decisions regarding an individual’s health and personal care in the event the individual is unable to communicate his or her own wishes.
Depending on how the Representation Agreement is prepared, the authority of a designated representative can include the following:
- Routine finances
- Decisions regarding health care, personal care, and limited legal affairs
- Refusal or consent to life-support treatment and care
- Consent to less common medical procedures/treatment
- Consent to treatment the adult approved while capable but, since losing capacity, has refused consent
- Deciding on living arrangements for the adult, including choosing a care facility
A Notary can help determine the appropriate scope for specific representative(s).
Who should have a Representation Agreement?
Any adult who wants to ensure that a specific person or persons are appointed to make decisions for the adult, especially if that individual has no spouse, no spouse and no children, or if the children are in conflict with one another or would not be good decision-makers.
Wills are a critical tool for outlining wishes for the distribution of assets, guardianship of minor children, and the designation of an executor who will take care of administering an estate. Despite this, a November 2010 survey found that only 51% of adults BC have a Will in place. Without a Will, the court will determine who will be the executor and the law will decide who is entitled to the estate.
Who should have a Will?
Any adult in BC who owns property including real estate, vehicles, or other assets; who has a dependent spouse or children; and/or who wishes to have someone that he or she knows and trusts take care of the estate after death.
Deed of Gift
A Deed of Gift documents a significant gift to another person during a person’s lifetime. When prepared and notarized by a Notary, it proves the donor’s intention for the gift, which can be required to counter undue influence or arguments after the donor’s death. It can also be useful in circumstances where a person near death wants to transfer his or her assets or home into joint tenancy or who wants to give a significant sum of money or a gift to another person during his or her lifetime.
Who should consider a Deed of Gift?
Anyone who wants to transfer an asset, as a gift, before his or her death
Information Resource Hyperlinks
For more information on Advance Planning tools, real-life examples of related situations, and expert spokespeople, please contact Karen Cook: Karen@cookpublicrelations.com or 604 551-9074.