How do they differ?

 By Stan Rule

As of September 1, 2011, advance directives are now recognized in Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act. What are advance directives, and how do they differ from representation agreements? If an adult has both a representation agreement and an advance directive in respect of a specified medical procedure, must a physician or other health care provider consult with the adult’s representative before giving or withholding the specified procedure? What is the interaction between the two instruments?

An advance directive is “a written instruction made by a capable adult that… gives or refuses consent to health care for the adult in the event that the adult is not capable of giving the instruction at the time the health care is required….” This definition is taken from section 1 of the Health Care (Consent) and Care Facility (Admission) Act. 

A representation agreement is a written agreement between an adult and one or more representatives, authorizing the representatives to make decisions or do things on behalf of the adult in relation to his or her personal care and health care. An adult may also authorize representatives to obtain legal services for the adult, “make arrangements for the temporary care and education of the adult’s minor children or other persons cared for or supported by the adult,” and handle “routine management of the adult’s financial affairs.” 

Accordingly, representation agreements may be broader in scope than advance directives, authorizing decisions concerning personal care and other matters in addition to health care.

Representation agreements give effect to an adult’s specific instructions and wishes indirectly, by requiring the representative to consult with the adult and comply with the adult’s current wishes “if it is reasonable to do so…” unless the representation agreement provides that the representative need only comply with the adult’s wishes expressed while capable. If it is not reasonable to comply with current wishes, they are not known or the duty to comply with them is excluded in the agreement, then the representative must comply with the adult’s instructions or wishes expressed by the adult while capable. 

In contrast, advance directives are direct expressions of the adult’s instructions and wishes. They operate under the following conditions:

• the health care provider is of the opinion that the adult needs health care;

• the adult is incapable of giving or refusing consent to health care; and

• the health care provider does not know of the appointment of a representative or committee of the person of the adult.

Under those conditions, the health care provider may provide health care to which the adult had consented and must not provide health care that the adult had refused in the directive. 

If the adult has made both a health care directive and a representation agreement granting the representative authority in respect of the proposed health care, which document governs? The health care provider must consult with the representative, and the advance directive is treated as an expression of the adult’s wishes while capable under the Representation Agreement Act unless the representation agreement provides that a health care provider may act in accordance with the advance directive without consulting with the representative. 

In summary, under this new legislation, unless a representation agreement provides that a health care provider may act in accordance with the advance directive, without consulting with the representative, then the health care provider must consult with the representative and the advance directive is treated as an expression of the adult’s wishes while capable. 

Stan Rule is a partner at the Kelowna law firm of Sabey Rule LLP. Stan’s preferred areas of practice are wills, trusts, estates, and estate litigation. He writes a legal blog entitled “Rule of Law.”

This article was published in the February 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.