The recent news about Terri Schiavo in Florida has drawn attention to the issue of care for those who cannot express themselves. There is a "Made in BC" solution that may address this situation.

A Living Will is a document that an adult makes to express his/her wishes regarding medical treatment, if the adult subsequently becomes unable to express his/her wishes in that regard. They can range from very general, e.g. “I do not wish heroic efforts made to keep me alive” to very specific, e.g. “I do not want to receive any blood or blood products”.

Living Wills have very limited legal effect in British Columbia. There are two main problems with Living Wills. First, the Living Will may have been made many years before the time comes to use it, so it may not reflect the adult’s current wishes. Second, if the Living Will sets out specific treatments or conditions for which the adult does or does not wish to be treated, changing medical technology may radically alter the effectiveness of the Living Will.

The “Made in BC” solution to the issue of dealing with medical consent when a person subsequently becomes incapable, is the Representation Agreement. These were proclaimed in force in February 2000. A Representation Agreement is a document that allows an adult to choose a person (or persons) to make decisions for them. It is similar to an Enduring Power of Attorney in that regard, but it may also allow the Representative to make decisions regarding the adult’s health and personal care. An Enduring Power of Attorney is limited to financial and legal matters. The Representation Agreement may cover finances or health or both.

Serious concerns regarding the use of Representation Agreements for financial matters were raised in an October 2000 Alert Bulletin to the Profession by the Representation Agreement Act Review Committee of the Victoria, Vancouver and Okanagan Wills and Trusts Sections of the CBABC. Some of those concerns have been addressed by amendments to the Representation Agreement Act, but several remain. As a result, most if not all lawyers are continuing to recommend Enduring Powers of Attorney for asset management, and are recommending Representation Agreements only for health care decision-making.

An adult may pre-express their wishes in the Representation Agreement, but the primary function of the representative is to determine the current wishes of the adult at the time the decision is to be made.

The Representation Agreement Act sets out procedures for the creation, execution and challenge of a Representation Agreement. A lawyer must be consulted in the making of a section 9 Representation Agreement.

A recent amendment to the Health Care (Consent) and Care Facility (Admission) Act allows for a Living Will to have legal effect only in emergency situations. In non-emergency situations, a Representation Agreement will govern.

An optional Registry for Powers of Attorney and Representation Agreements has been established through the Representation Agreement Resource Centre. Hospitals can search the Registry online 24 hours a day to determine if a patient has registered a planning document.

For more information refer to Dial-A-Law script 180 on Power of Attorney & Representation Agreements.

If you want a Representation Agreement, please consult your lawyer. Or if you do not have a lawyer, please contact the Lawyer Referral Service for the name of a lawyer who may assist you. The Lawyer Referral Service is available by telephone on weekdays from 8:30 am to 4:30 pm at 604.687.3221 in the Lower Mainland or 1.800.663.1919 in British Columbia.

[posted March 2005]