By Aatif Nanji of Simpson Notaries
Many people are familiar with the concept of Power of Attorney and how it can be used to make decisions for another person when they are no longer capable. What many people do not know is that a Power of Attorney can only be used to make legal or financial decisions.
So how are decisions about your health and personal care made when you are no longer capable?
Temporary Substitute Decision Maker
If you become incapable and decisions need to be made, then your health care provider can appoint a Temporary Substitute Decision Maker (TSDM) to represent you. There is a ranked list of who can act as your TSDM, beginning with your spouse.
If no spouse is available, then it will be one of your children, then a parent, then a sibling, and so on. In many cases, having a TSDM can be sufficient; however, the TSDM’s authority is limited, and you do not get to choose who the TSDM is.
Medical Orders for Scope of Treatment
If you are being admitted to a hospital for something serious, the Fraser Health Authority may ask you to fill out a form called Medical Orders for Scope of Treatment (MOST). This form allows you to either consent or refuse consent to certain life-saving measures (e.g. intubation, defibrillation, etc.), but not much else.
If you would like to make a personal statement about your health care preferences, then you can do an Advance Directive (commonly known as a “living will”).
In an Advance Directive, you can indicate whether you consent or refuse consent for various treatments and life-saving measures. It helps to have knowledge of medical practices if you are choosing this option.
If you would like to appoint someone you trust to make medical decisions for you if you become incapable, then you may consider doing a Representation Agreement. This is like a Power of Attorney, but for health and personal care matters.
It is powerful, as the Representative’s authority will supersede Advance Directives, MOST forms, and a TSDM. A Representation Agreement can also give your Representative the authority to refuse life-support.
If someone you care about has lost capacity and the above options are not viable, then as a last resort you can apply to the BC Supreme Court for a Committeeship. A Commiteeship is the most powerful authority you can have over another person, so the courts take these matters very seriously.
The application process can take months and be very costly. This process usually requires the assistance of a lawyer well-versed in adult guardianship laws.
There are several ways medical decisions can be made when you have become incapable, depending on how much pre-planning you have done. Planning ahead by doing an Advance Directive or a Representation Agreement (particularly, the latter) can be very helpful.
A Representation Agreement will allow you to choose the person that will be making those decisions for you and can save your family the hassle of dealing with limited power as a TSDM, or worse, having to go through the courts in pursuit of a Commiteeship.