What is an Advanced Care Plan?

Estates & Trusts, Wills | June 3, 2020 | Written by Natasha Nair

An Advanced Care Plan is an umbrella term to describe the legal framework of your end-of-life care planning. There are several options available to you to create a plan for your health and personal care decisions, including the following:

  1. Relying on a Temporary Substitute Decision Maker (“TSDM”);
  2. Medical Orders for Scope of Treatment (“MOST”);
  3. Advanced Directive; and
  4. Representation Agreement.

If you have been following our blog, you will know that an attorney appointed under a Power of Attorney is not authorized to make medical or personal care decisions. A Power of Attorney is a legal document which gives someone you trust the power to make legal and financial decisions on your behalf.

Learn how to fraud proof your elderly parents.

Temporary Substitute Decision Maker

In British Columbia, the Health Care (Consent) and Care Facility (Admission) Act (the “Act”) states that, until the contrary is demonstrated, every adult is presumed to be capable of giving, refusing or revoking consent to health care, including consenting to or refusing admission to a care facility. If a patient is capable of providing informed consent and communicating his or her wishes, whether written, oral or by inference, he or she has the right to do so, to the exclusion of all others.

However, if a patient is not capable of giving informed consent, a temporary substitute decision-maker (“TSDM”) is appointed. The TSDM will be selected from the following list, in order of priority:

  1. spouse;
  2. child;
  3. parent;
  4. brother or sister;
  5. grandparent;
  6. grandchild;
  7. anyone else related by birth or adoption;
  8. a close friend;
  9. a person related by marriage.

The TSDM must be at least 19 years of age, have been in contact with the patient in the preceding 12 months, not be engaged in a dispute with the patient and be mentally capable themselves. Importantly, the TSDM must also be willing to comply with any instructions that the patient expressed while he or she was capable, and give or refuse consent based on the patient’s known beliefs and values.

Relying on the provisions in the Act to appoint a TSDM is one advanced care plan option; however, the burden on the TSDM is a heavy one and the TSDM may not feel equipped to express the patient’s wishes.

Medical Orders for Scope of Treatment

Another tool in the Advanced Care Plan toolkit is a Medical Orders for Scope of Treatment (“MOST”). MOST is a tool to communicate your wishes for medical intervention to your health care team. MOST is a medical document, not a legal document, and it is completed by the patient with their physician.

What is a Power of Attorney?

A MOST form sets out the specific level of care a patient wishes to receive depending on different medical circumstances which may arise and is done with the expertise and advice of a medical professional. If you have a chronic or other life-shortening illness, it is prudent to discuss a MOST with your physician. The benefit of having a MOST completed is that the MOST is stored in your electronic medical record, making it accessible at hospitals and some clinics across the province. A MOST cannot be completed without your physician.

Advanced Directive

Also known as a Living Will, an Advanced Directive is a legal document created with the assistance of a lawyer, setting out what actions should or should not be taken in regards to an individual’s health if the individual is no longer able to make or express decisions for themselves. It is contemplated in the Act and defined as “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.” If a person is in need of health care and is incapable of giving or refusing consent, the Act directs the health care provider to take instructions from the Advanced Directive. An Advanced Directive does not appoint an individual to make decisions on your behalf; it is merely a recitation of your wishes.

What decisions can a Power of Attorney make?

Representation Agreement

A Representation Agreement is a legal document that appoints a person (your “Representative”) to make health care and personal care decisions if you become incapable of making decisions independently. Your Representative is authorized to make decisions about personal care, limited financial matters, major and minor health care, vocational and educational activities and, in some cases, end-of-life decisions and admission to a care facility.

There are two types of Representation Agreements authorized under the Representation Agreement Act: A Section 9 Agreement, which is made by an individual who is fully capable of understanding the nature and consequences of the Agreement and grants the Representative the broadest scope of powers, and a Section 7 Agreement, which may be made by an individual of limited mental capacity who understands and expresses the desire to have a Representative assist them with their day-to-day tasks. As a Section 7 Representation Agreement is made by a person with limited capacity, its scope is also more limited and does not include the ability to make end-of-life decisions or physically restrain the individual.

Intersection of MOST, TSDM, Advanced Directives and Representation Agreements

How do each of these Advanced Care Planning documents interact? If you have multiple estate planning documents in place, which will take precedence? The likely hierarchy of power is as follows:

MOST is not a legal document, so it is unclear where it would fall in the hierarchy of documents; however, it is a medical order, signed by your physician, and therefore carries immense weight. Furthermore, and practically speaking, it would likely be the first document a health care provider would look to for direction and, therefore, it is likely at the top of the hierarchy.

The Act specifically states that where there is a Representation Agreement, the instructions of the Representative will take precedence over an Advanced Directive (unless the patient’s Representation Agreement specifically states that the health care provider may act in accordance with the patient’s Advanced Directive without the consent of the Representative).

In the event that you do not have a written Advanced Care Plan containing documents such as those described in this article, your TSDM will have the ability to make decisions for you. Accordingly, if nothing else, ensure that you have candid, honest conversations with your loved ones to ensure that they are in a position to honour your wishes when the time comes.

If you would like to discuss your Advanced Care Plan further, please contact one of our estate planning lawyers at 604-850-6640 or by filling out a contact form on our website.

Written by Emily Anderson, Associate, Linley Welwood LLP

© Linley Welwood LLP

The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.

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