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June 6, 2008
Tough decisions ahead
Panel speaks about representative agreements.
DENA DAWSON
If I am not for myself, who will be for me?" asked Rabbi Hillel 2,000 years ago. Today, people are asking the same question when it comes to their end-of-life choices.
A symposium held last week, organized by the Jewish Seniors Alliance, invited a panel of speakers to discuss Bill 29, a new government law that addresses representation agreements – enabling citizens to name trusted persons to speak on their behalf on health, personal care and routine financial affairs, when they themselves are unable to do so.
The three panelists were Joanne Taylor, executive director of the Representation Agreement Resource Centre, Richard Wenner, barrister, solicitor and estate planner and Dr. Gloria Gutman, co-leader of the British Columbia Network for Aging Research and past president of the International Association of Gerontology and Geriatrics.
Taylor said that the newly named Nidus (Personal Planning Resource Centre and Registry) concerns itself with what she called "incapacity planning." In effect, the central issue is "Who will act on my behalf, when I no longer can?" – for example, in the areas of health and personal care, final say in life-support situations and financial matters. Each of these areas presents different problems and requires different documents. Bill 29, which was passed by the B.C. Legislature in October of 2007, is intended to make available to every British Columbian a representation agreement. This agreement is a legal document that names the person you choose to be your representative to act on your behalf if you are incapable of giving or refusing consent for health or personal care matters. An agreement may also include looking after routine financial and legal matters.
In the past, living wills, usually about refusing life support at the end of life, were used to indicate the wishes of the individual. However, these living wills, or advanced directives, did not indicate who was to act on your behalf in directing others to do (or not do) what you indicated. In fact, many of the terms listed in living wills – decisions about life support, for example – are not legally binding. Now, in British Columbia, a representation agreement is the only way to authorize in advance someone to act on your behalf and carry out your wishes if you become incapable. Such an agreement covers end of life, as well as other situations.
As Wenner explained, a simple power of attorney, with which most of us are familiar, is limited in scope and is short term. You can use it to sign legal forms, do banking, take care of bills and so forth, but it does not cover disposition of real estate and it ends immediately upon death.
Most of the powers of a power of attorney are included in a representation agreement. The enduring power of attorney, however, is still necessary if you have real estate that requires management when you become incapacitated or when you die. At present, you need a lawyer to set up an enduring power of attorney but, when Bill 29 goes into effect later this year or in early 2009, you will not need to consult a lawyer to set one up.
Wenner cautioned the audience about jointly held tenancy of assets, which can lead to serious taxation problems. In an attempt to avoid probate fees by doing a joint tenancy, you might incur a capital gains tax that will cost a great deal more. Again, speaking to an expert, accountant or lawyer, is a good idea before deciding on joint tenancy of, for example, a parent's home.
Gutman stressed that the representation agreement is all about maintaining control over your life, "You want somebody to make decisions for you who thinks the way you do." Advanced directives are also only valuable if you talk to your representative. Be sure that both of you are on the same wavelength (yours, that is) concerning end-of-life decisions, she said.
The question period brought up a number of worst-case scenarios. One questioner asked if hospitals now automatically consult the representation agreement registry when a patient either in the hospital or just brought in through emergency becomes "terminal." "They aren't using the registry yet," answered Taylor, "but with the new legislation that will be taken care of."
The representation agreement process is somewhat complicated. For information and printed materials (including a kit for the whole process, including registration), contact the Nidus Resource Centre and Registry at 604-732-1555 or www.nidus.ca.
Dena Dawson is a Vancouver freelance writer.
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