For incapacity, end-of-life, the future

Who is Nidus? What is Personal Planning? What legal documents can I make? > This presentation is about planning. It does not discuss details of the ‘default scheme’ – such as TSDM, Committeeship or PGT – when there is no plan or gaps. Where do I get more information and the legal forms? Where can I register the completed documents? This presentation provides a very basic overview. It is not legal advice.

BC non-profit, charitable organization (1995) established as a result of a grass-roots law reform. Hub for expertise on Representation Agreements. Resource to the public, community organizations, and professionals. Centre for excellence on personal planning and best practices – training and collaboration. Provides a Registry service to connect information and documents to the right people at the right time. Nidus is the Latin term for nest: a symbol of support and safety.

Personal planning is about making arrangements in the event you need assistance during your lifetime.* > The law divides our life into four general areas or categories. See chart after next.  We don’t live in separate categories – the areas are interrelated and we need to address them all in our planning. * The health system uses the term ‘advance care planning’ to encourage planning for health care. Personal planning covers all life areas. (Estate planning is about making arrangements for after death.)

There are two paths in personal planning. > Future path  For adults who are capable of making decisions and managing their own affairs and who want to plan for the future in case they need assistance. They understand what the planning documents cover and their effect. OR > Need help today path  For adults whose mental capability is currently in question – due to illness, injury or disability. o These adults may need help for a temporary period (while recover from a stroke) or on an ongoing basis (due to advanced dementia).

Let’s look at the FUTURE path first. Adults who are planning for the future will make two separate documents to cover the following life areas: > Health and personal care matters; and > Financial and legal affairs.

A Representation Agreement Section 9 (RA9) is governed by the Representation Agreement Act. An RA9 is the strongest and most comprehensive legal document in BC for health and personal care matters. An RA9 is about appointing someone – as your representative – to assist you with health and personal care decisions and, if necessary, to act on your behalf. You must understand what an RA9 covers and the effect of naming someone to act on your behalf.

A representative makes decisions according to your verbal (or written) instructions and wishes and your values and beliefs. An RA9 includes authority for: > Minor and major health care, and > Personal care matters, and > Refusing health care necessary to preserve your life (refusing life support).

An Advance Directive (AD) is a legal document in BC as of Sept. 1, 2011 for certain health care matters. It was lobbied for by staff of some health authorities. You must be capable of understanding what it means in order to make an AD. An AD is not equivalent to an RA9. > It does not appoint a person; and > It does not cover personal care matters; and > It cannot cover the same range of health care matters as a Representation Agreement, or respond to unexpected circumstances.

An AD must be a clear instruction you make when capable about health care you would give or refuse consent to when incapable of informed consent. > The law does not provide wording for instructions. You cannot be required to make an AD as a condition of receiving services. To make an AD that a health care provider alone could follow, it must apply to the circumstance when it is used. E.g. > Imminent surgery  if you and the surgeon agree on wording. > Impending death and you are still competent to make it.

You – if you are capable of informed consent. If not,* 1.Your representative, authorized in a Representation Agreement, (can also assist you when capable), if no one 2.An Advance Directive if applicable instructions, if none 3.A person selected by a health care provider as your Temporary Substitute Decision Maker (TSDM). This person has short-term, limited authority. If no one 4.The Public Guardian and Trustee (government official). * Sometimes a family member applies to court to be appointed committee of person (personal guardian). This might happen if an adult is in a permanent coma. If appointed, this person overrides all, including you.

We are still on the FUTURE path and are now going to look at planning for financial and legal affairs. There are two legal documents available for financial and legal affairs – depending on what you need to cover. > You make ONE, not both. > We are first going to look at the Enduring Power of Attorney.

An Enduring Power of Attorney (EPA) is governed by Part 2 of the Power of Attorney Act. An EPA is the most comprehensive legal document in BC for financial and legal affairs. An EPA is about appointing someone – as your attorney – to act for your financial and legal affairs. (Attorney does not mean lawyer).

An attorney makes decisions according to what they think is best for you (your best interests) while considering your wishes and values and trying to meet your health and personal care needs. You must be capable of understanding 6 items in order to make an EPA. Read the Nidus fact sheet for full details. > An example of one item: the person you appoint will be able to do anything for financial affairs that you could do when capable.

An EPA gives authority for: > Routine financial affairs – e.g. banking, investments, renewing car insurance, selling a vehicle, Canada Revenue, re-directing the mail. > Obtaining legal services and instructing counsel – settling insurance claims, representation in court.

An EPA can also give authority for: > Dealing with real estate (land title). > Acting as director or officer of a company you own or serve on. > Using your money for personal benefit and making new loans or gifts to others. > Having discretion with respect to your investments. > Dealing with some matters in another province – for example a pension plan.

There is another legal document that some people on the future path might use for their financial and legal affairs. In the Representation Agreement Act, under Section 7, it lists routine financial and legal authorities that a representative may be given. > An RA7 F+L does not cover as much as an EPA and it is not yet as familiar to financial institutions or federal government agencies.

An RA7 F+L gives authority for:* > Routine financial affairs – e.g. banking, investments, renewing car insurance, selling a vehicle, Canada Revenue, re-directing the mail. > Obtaining legal services and instructing counsel – settling insurance claims, representation in court. *The RA7 F+L does not include additional authorities like the EPA has – for example dealing with real estate. If you want or might need the greater coverage, make an EPA.

You – if capable of managing your finances. If not, only the following have legal authority to act on your behalf. > An attorney, appointed in an Enduring Power of Attorney. > A representative, named in a Representation Agreement Section 7 that includes authority for routine finances. > A committee of estate, appointed by a judge (court order). If appointed, overrides all, including you. > The Public Guardian and Trustee as property guardian – after assessment by a qualified health care provider.

An adult in BC who makes decisions and manages their own affairs now is on the FUTURE path. > Make your plan while capable so you have the necessary coverage in case you need assistance or someone to act on your behalf in the future.

What if someone is not considered capable of making a Representation Agreement Section 9 (RA9) and/or an Enduring Power of Attorney (EPA)? Mary has had dementia for some time. She now requires considerable support from John (her spouse) with daily living activities and with decision-making. > As a spouse, John, does not have all the authority he needs to help Mary. > Mary needs help today and she will need ongoing support.

If someone’s mental capability is currently in question, they may make a Representation Agreement Section 7. > The Representation Agreement Act has a different view of capability for Agreements under Section 7.  Even if someone cannot make decisions independently or manage their own affairs, they may make an RA7.  There are no specific capability requirements that everyone has to meet; for an RA7 it depends on a variety of factors and the individual. > John can help Mary make an RA7.

Section 7 lists standard powers or authorities that address ALL four life areas. > If Mary has nothing in place, she could make the RA7 All to cover all life areas. Let’s say Mary made an EPA when she was able to meet the capability requirements (before her dementia advanced). This means she has her financial and legal affairs covered. > She will make an RA7 to cover her health and personal care authorities (RA7 H+P). She can do this even if her mental capability is currently in question.

The Representation Agreement Act came into effect in February > For the first time in BC history:  Health care professionals had to respond to legal planning documents for health care; and  Legal professionals were asked by clients to draft legal planning documents for health care. > However, neither group had training or education on Representation Agreements. Nidus, who was involved in the development of the law, has been the bridge – providing resources and RA forms.

In 2012, the Ministry of Health produced a guide to advance care planning, My Voice. > The public and professionals find it confusing. > The forms included in it meet the legal requirements (like the Nidus forms) but do not address practical needs, especially for health care situations. The Continuing Legal Education Society recently published 30-page RA forms for lawyers to use. > This is completely opposite the goal of accessibility; one of the guiding principles behind the law.

The Nidus website has lots of information for self- help. > Nidus also provides personal help by appointment – BOOK NOW at the website, right sidebar. Find Representation Agreements forms and instructions on the Nidus website for download and self-help. Find information and tips on the Nidus website before meeting with a legal professional to make an Enduring Power of Attorney.

Adults with a developmental disability, or FASD or young adult with acquired brain injury. You and other adults who are considered capable and want to plan for the future. Mary and other older adults whose mental capability is currently in question.

1 st Wed — 11:30am – 12:30 pm Demo of Personal Planning Registry 2 nd Wed — 11:30am – 12:30 pm Health and Personal Care Planning 4 th Wed — 11:30am – 12:30 pm Financial and Legal Planning Repeated Monthly Webinars (Wednesdays) Sign up at > Self-Help > Presentationswww.nidus.ca

The Personal Planning Registry offers a centralized place to store information that matters to you and that others may need to know, in order to help you. > The idea of a Registry was in the original Representation Agreement Act (1993).  Government decided not to implement it. > The public continued to request a Registry for communication purposes (not for government scrutiny).  In 2002, Nidus launched the first online version of the Registry. In 2014, we launched a new online system.

Register information and store a copy of your completed document(s). > The only fees are for registration. Each person needs their own Registry Account.  $25.00 for the first registration; $10.00 for additional. > Access to the Registry is 24/7:  View your own record, print information.  Update contact information.  Grant viewing access to others who need to know. > Wallet cards are free to download (as many as you want).

Download and print wallet card

Lawyers and notaries public can be authorized to register on behalf of their clients. When you register a planning document, you can grant viewing access to authorized institutions. For example, > For EPA or RA7 F+L – financial and legal institutions, government agencies, Public Guardian and Trustee. > For RA9 or RA7 – health and personal care institutions (hospitals, residential care programs) and PGT.  Emergency searches can be done by authorized personnel using the information on the Registry wallet card – adult’s first and last name and Nidus ID. Share viewing access with specific individuals – your representative, financial advisor, family doctor….

Personal Planning Registry Go to > click Registry tab. Then click Online Registry in right sidebar.

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