Substitute Decision Making Irina Kordic Murphy Battista LLP

Substitute Decision Making What is it? — It is a legal way to have another person make decisions on behalf of a person who no longer has the capacity to make those decisions on his own.

Substitute Decision Making When is it appropriate? — It is desirable or necessary when someone has either diminished capacity or no capacity to make decisions about their finances, legal affairs, personal well-being or health care. Such circumstances arise when someone has: — Trauma/brain injury — Developmental delays — Drug/alcohol abuse — Psychiatric illness — Dementia or neurological disorders

Capacity Situations in which a person’s capacity can become an issue: — Instructing counsel — Consenting to medical treatment — Making health care decisions — Making a Will — Managing oneself and/or one’s affairs

Capacity What is “capacity”? — It is the ability to understand the information necessary to make a decision and to appreciate the consequences of making that decision. — The definition is focused on the process rather than outcome.

Capacity Who determines whether capacity is at issue? — Usually, this is a judgment made by the lawyer who is drawing up whatever legal document is requested. — A judge decides this in committeeship applications. How is capacity assessed? — Interactions with a client — Information from family, social workers, etc — Medical information — Judgment call

Substitute Decision Making Ways to appoint a substitute decision maker: — Power of Attorney — Representation Agreement — Committeeship There are advantages and disadvantages to each manner of substitute decision making. It will depend on the situation which is the most appropriate

Powers of Attorney What is it? — Power of attorney (POA) is a legal document that appoints another person, called an “attorney,” to deal with your business and property and to make financial and legal decisions on your behalf. — POA can be very specific or very broad. — A POA ends if you become mentally incapable. If you want the power of attorney to continue even if you become mentally incapable of making financial decisions, you should make an enduring power of attorney.

Power of Attorney Advantages — Easy, inexpensive and quick to prepare; — The POA can be restricted to limited purposes or made all encompassing; — The implementation of the POA can be delayed upon the happening of a certain event; — The POA can be made enduring; — More than one attorney can be appointed to act separately or together; — The donor of the POA has control over who is their attorney; — Can be used to deal with real estate.

Powers of Attorney Disadvantages; — POAs cannot be used to make or assist with health care decisions; — There is no formal monitoring of the attorney’s conduct – potential for misuse; S.19 of POA Act outlines duties — Powers of donor and attorney are concurrent; — POA is no longer valid if revoked, the donor dies or if a committee is appointed.

Representation Agreements What is it? — A legal document created under the Representation Agreement Act in which you appoint someone as your legal representative to handle your financial, legal, personal care and/or health care decisions, if you’re unable to make them on your own. — It is a contract between you and the representative. — You cannot appoint any person who is paid to provide you with personal or health care or who is an employee of a facility through which you receive personal or health care, unless that person is your child, parent or spouse.

Representation Agreements There are two kinds: — Section 7 limited agreement – covers straight forward, everyday decisions — Section 9 general agreement – covers complex legal, personal care and health care matters They can be registered — Nidus Personal Planning Resource Centre & Registry — A monitor can and should be appointed

Representation Agreements Advantages: — If you make the RA, you can still continue to make your own decisions and receive the help of the representative when needed; — You can choose who you want to be your representative; — Activities of the representative are monitored — RA can be used to get assistance with both financial and health care decisions.

Representation Agreements Disadvantages — More expensive to prepare if you choose to retain a professional to do it. — More complicated than a POA. — Cannot be used to deal with real property. — It can be revoked and ceases to be of effect if revoked or if a Committee is appointed.

Committeeship What is it? — A committee (guardian for an adult) makes decisions for another adult who is not mentally capable of making decisions about his or her own health care and personal affairs, and/or financial and legal affairs. — Usually a last resort and necessary if you already lack the capacity of make a POA or a RA.

Committeeship A person (usually a family member) or the Public Guardian and Trustee of BC (PGT) can be appointed as a committee of an adult who no longer has the requisite capacity. It is done by the court. Basic requirements are: — Affidavits from 2 medical practitioners setting out that, in their opinion, the person is incapable of managing themselves and/or their affairs

Committeeship Advantages — Activities of the Committee are monitored by the PGT and the Court if necessary

Committeeship Disadvantages: — More expensive and takes longer; — Person usually has no input as to who the Committee will be If a person nominates a committee while they still have a capacity, then their wishes will be considered — Must be revoked by Court order and cannot be revoked by the individual; — The person has no legal input into their financial decisions or health care’ — Committee is entitled to remuneration for their services

Substitute Decision Making Summary of options: Option Financial Affairs Legal Affairs Personal Care Health Care POAYES NO RA s.7YES NO RA s. 9NO YES CommitteeshipYES

Substitute Decision Making Regardless of manner of substitute decision making in place, no one except an individual can make the following decisions: — Make or vary a Will; — Consent to euthanasia; — Assist with suicide; — Consent to non-therapeutic sterilization; — Consent to marry; — Do anything that is contrary to law; — Omit to do something that is required by law.

Helpful Websites

Relevant Statutes Patients Property Act R.S.B.C c.349 Representation Agreement Act R.S.B.C s.405 Power of Attorney Act R.S.B.C c.370 Health Care (Consent) and Care Facility (Admission) Act R.S.B.C c.181