Many myths exist about personal planning law. Even lawyers who don’t work in this area every day can fall victim to these myths. We thought we’d set the record straight on 4 common misconceptions about BC personal planning!
Myth 1: I have close family / a next of kin. The law gives them powers already. I don’t need to make personal planning documents. I’ll rely on the defaults.
Reality: In British Columbia, no one has automatic authority over an adult’s legal, financial, and personal care matters. If an individual does not undertake planning, the only way to fill these gaps may be through a court application to give authorities to family member(s)/supporter(s) (known as “private committeeship”) or the Public Guardian and Trustee of BC (known as “adult guardianship”). These applications can be expensive, slow and undignified.
When someone turns 19 years old in BC, the authority of parents to make decisions for them, to attend meetings with service providers, and to receive personal information about the adult child ends. This is true even if the adult has cognitive disabilities and needs continued support from family. Personal planning documents (like a section 7 Representation Agreement (RA7)) are needed.
A healthcare provider might determine their patient is incapable to consent to health care matters. If that patient has not done any personal planning (that is, has no Representation Agreement or Advanced Directive on point) the law says the healthcare provider must choose a Temporary Substitute Decision-Maker (“TSDM”) from a prioritized list of the patient’s family members who are available. The TSDM can then give or refuse consent to healthcare for the patient, but a TSDM’s authority at law is much more limited than many people expect (see more below). Their decision-making is also less person-centred at law, and you don’t get to choose who the right person is for your circumstances. A health care Representation Agreement improves all of this.
Myth 2: My default health care TSDM will have the same authority and information that a representative would have under any Representation Agreement I make.
Reality: A TSDM’s authority and access to information is much more limited than that of a representative, especially a representative appointed under a Section 9 Representation Agreement (RA9). Some examples include:
- a TSDM has no powers in urgent / emergency situations (e.g. healthcare to preserve life, prevent serious bodily harm or pain, etc.). In these situations where the patient does not have a representative, the emergency health care is generally permitted without consent. But if the patient had an available representative, the representative must consent to or refuse the emergency services first
- a TSDM does not have a general authority to refuse healthcare necessary to preserve life – they must first receive approval from healthcare providers that may not know you. An RA9 Representative’s authority to refuse life-preserving /life-supporting healthcare is broader and centres your wishes on such matters
- a TSDM is temporary – if a future health care decision is needed, and the current TSDM is unavailable, another will be chosen. In comparison, a representative is consistent and appointed in advance. Representatives increase continuity of care which is very important in healthcare matters
- A TSDM does not have general access to your healthcare records. Instead, they only have access to records and information necessary to make an informed decision on the narrow consent decision before them. By contrast, a Representative has the same right to information and records as you regarding your present incapability and the area of authority you granted them (usually “healthcare” generally)
- a TSDM does not have any formal authority regarding personal care, so a court application may still be required in this regard. Personal care matters are important and include where you live, how you dress, who you visit with, and social and traditional activities you participate in.
Making a Representation Agreement (RA) to appoint a Representative is preferrable to relying on a TSDM. Our website with free RA forms and tips on how to make one is here: https://nidus.ca/ra-forms/. A lawyer is not needed to make any RA.
Myth 3: If an adult is not traditionally “cognitively capable” (e.g. cannot understand the nature and effect of a legal document, cannot make a power of attorney or will, cannot manage their legal, financial and/or personal affairs) then they cannot make personal planning documents.
Reality: The Section 7 Representation Agreement (RA7) is still an option for this adult. An RA7 can give authorities to a representative in any or all the following areas: legal affairs, routine financial management, health care and personal care. Everyone is presumed at law to be able to make an RA7 until proven otherwise. An RA7 can be made by an adult even if a doctor’s opinion of incapacity exists. One of the purposes of RA7s is to avoid the need for court applications in such situations. You can read stories of people in similar situations who have made and used RA7s here: https://nidus.ca/resource/videos-stories/#writtenstories
You can read about the unique and inclusive RA7 approach to capacity here: https://nidus.ca/PDFs/Nidus_Info_Capability_RA7Path.pdf
Our website with free RA7 forms and tips on how to make one is here: https://nidus.ca/ra-forms/#ra7forms. A lawyer is not needed to make an RA7.
Myth 4: My spouse and I own our home in joint names. I don’t need an Enduring Power of Attorney (EPA) because my spouse can deal with title to the home even if I’m incapable.
Reality: A signature is needed for each registered owner to sell or refinance any mortgage on a piece of BC real estate. If a joint owner (one spouse) is incapable, an Enduring Power of Attorney (EPA) that they made while capable is needed for someone else (the individual appointed in the EPA) to deal with their half of the property.
If there is no EPA, a court application will likely be required. Unfortunately, an RA7 cannot be used to deal with an adult’s interest in real estate.