Health Care Decisions: Avoiding the Terry Schiavo Incident

Many people have heard the name Terry Schiavo. The controversial dispute surrounding Terry’s life and the battle that ensued between Terry’s husband and parents brought to the forefront, for many of us, the issue of the right to die.

In Terry’s situation, the fact that she did not have a Living Will left an absence of clear indication of what her wishes were and what direction her loved ones should take with regard to this matter. It resulted in a lengthy and costly court battle. In the end, regardless of the outcome determined by the Courts, no one really knew what Terry’s true wishes were.

Generally, adults can only be given health care with their consent although there are some exceptions to this rule for urgent or emergency situations. But what happens when an adult is unable to make their own decisions and cannot give consent?

Many people may not know that in British Columbia a “living will” is not legally enforceable. The Representation Agreement is the only document that is legally binding and enforceable with regard to your personal and healthcare wishes.

A Representation Agreement is a legal document in which you appoint a person to be your representative or decision-maker to act and make decisions on your behalf in the event that you become mentally incapacitated and incapable of making your own decisions. The decisions your representative can make include not only personal and health care decisions but also decisions regarding financial and legal matters.

The importance of making a Representation Agreement is that it allows you to plan for the possibility of incapacity. It allows you to choose the person who you want to act on your behalf, and it allows you to set out clear guidelines and directions to your representatives.

In the event that you become incapable of making decisions, your representative would be required to:

• Follow your instructions in your representation agreement;
• Make decisions based on your beliefs and values if you did not give specific instructions;
• Act in your best interest if your representative does not know your beliefs and values.

A representation agreement is a flexible document:

• The powers given to your Representatives may be very broad or very limited decision-making powers;
• The instructions given to your Representatives may be very general or very detailed. You may also include instructions regarding life-prolonging and/or life-ending decisions.

A representation agreement also provides safeguards and options for you in planning for your future care. For example:

• You can appoint alternate Representatives in the event that your primary representative is unwilling or unable to act;
• you can appoint co-Representatives to act together;
• you can appoint multiple Representatives – meaning you can choose one person to handle your legal and financial decisions and another person to handle the personal and healthcare decisions;
• you can appoint a Monitor to review and oversee the activities of your Representative although it is not mandatory;
• you have two triggering events, which can make the Representation Agreement effective, including one which would only allow a representative to act upon you becoming incapable of managing your affairs, but only after a doctor has evaluated you and has made such a determination.

If you have not taken the proper legal steps to determine how health care decisions will be made, you are incapacitated and decisions regarding your healthcare need to be made, health care providers will look to either:

1. a committee of person – who is someone appointed by the Court to make health care decisions for you upon a court application being made by a family member or friend under the Patient’s Property Act; or
2. a temporary substitute decision-maker — who will be chosen by a health care worker in accordance with the Health Care (Consent) and Care Facility (Consent) Act; A health care worker who needs direction regarding a health care decision will have to look to the scheme set out in the Health Care (Consent) and Care Facility (Consent) Act and determine who will be your temporary decision maker.

This legislation specifies who can be designated as a decision-maker and in what order of priority a person will be designated. The order of priority of the individuals who may be appointed as the decision maker is as follows:

1. your spouse
2. your adult children
3. your parents
4. your siblings

The Act also sets out conditions under which one of these individuals may be disqualified for designation as a decision maker for reasons such as:

• If there has been no contact between you and the potential decision-maker for a 12 month period;
• if there has been any dispute between you and the potential decision-maker.

Even though such a scheme exists, why depend on it and leave it to the Courts or health care providers when you can make decisions regarding your future yourself?

If you have a Representation Agreement:

• It ensures that the person(s) of your choice will act on your behalf;
• you can make your wishes known and set out directions and guidelines for your representatives to follow when making decisions on your behalf;
• it minimizes the likelihood of disputes among your family members since your representative’s decisions, if they are in accordance with your wishes, will be determinative; and,
• the Representation Agreement Act makes your representative accountable to the courts to act in a manner that is in accordance with your directions.

Contact Stephen Miller for more information.

Located in: Wills & Estates