Reasons you may not want to make your child your financial and care advocate

Decision-making power

Are you putting your (adult) child in a conflict of interest by appointing them as your attorney by power of attorney? Or as your representative with a representation agreement?

Of course you appoint your child. How could you find a more trustworthy candidate? How could that possibly put them in a conflict of interest? What other interest than your best interests could they have at heart?

To put it bluntly, their own—even if unintentionally.

I’ll give you a scenario to illustrate the conflict. You and your husband put your life savings into your home. You continue living in the home after your husband dies. Modest pension income covers your expenses. At some point, your cognitive decline becomes noticeable to your child. Concerned, they take you to your doctor who diagnoses dementia.

Years ago, you had the foresight to appoint your child both your attorney by power of attorney, as well as your representative by a representation agreement.

On one hand, thank goodness. There is someone you love and trust in place to handle your financial and care affairs. But on the other hand, you start feeling the discomfort of losing your independence.

A fall puts you in the hospital with a broken hip. On release, you need help with mobility and personal care. You also require supervision because of advancing dementia. Strange surroundings make you uncomfortable. You want nothing more than to get back into your familiar home surroundings. But it will require accessing the equity in your home to pay for significant renovations to accommodate your disability. That equity will also be required to pay for care and supervision.

The renovations and ongoing care expenses will be significant. The equity in your home could completely disappear.

Alternatively, the very best care facilities, along with supplemental one-on-one services, would also cut into that equity. Providing the level of support and care you can afford will cut sharply into your child’s inheritance.

Is the conflict of interest painfully clear?

Perhaps I am being cynical. Perhaps every child, no matter their own financial circumstances, would spare no expense when spending their anticipated inheritance for their parent’s comfort and care. Or am I’m being a realist?

There’s another factor. However well-meaning your child might be, they might be horribly ill-equipped to be your advocate. They might not know about what levels of home care can be provided by the health authority, or be unfamiliar with the kind of equipment and home supports that can help you stay in your own home.They might not know one-on-one service providers can be hired to support those in care homes.

Yes, anyone can make inquiries, but feeling your way through unfamiliar territory can be overwhelming and is never as effective as knowing the ins and outs.

I have looked into alternatives. Are there folks with experience and expertise in end-of-life matters who offer their services to act as attorney and representative?

Imagine the peace of mind of appointing a professional advocate with that expertise.

You can keep your kids in the loop by giving them the authority to monitor the work of the professional, while giving them the peace of mind their parent has an experienced and capable advocate.

Are professional advocates available? I’ve come up empty in my superficial search, but I might not know where to look. If they exist, they’re not well advertised.

If you are aware of a business with professional advocates who provide those services, please let me know and I will pass the information along.

I envision a service would provide candidates with experience in elder care, who are carefully vetted and bonded. The professional would be required to keep diligent records of their activities and reasons for their decisions, and provide transparency to whoever is the “monitor” and careful oversight by the business that employs them.

Would you be interested in accessing that kind of service? Are you someone who possesses the life experience that would make you an excellent health care and financial affairs advocate?

Please e-mail me and I’ll share with you the results of my inquiries.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Conflicts of interest can be found in many walks of life

Conflicts of interest

Next week I plan to write about conflict of interest in the context of powers of attorney and representation agreements but this week, I will set the stage by writing about conflicts of interest generally. They’re everywhere.

Many columnists, including me, have conflicting interests. I am a writer who is interested in providing helpful information about end-of-life matters to the public. I am also a lawyer running a law firm, interested in building my clientele.

I could use my column to persuade readers that particular legal services are necessary, even if that might not be so. I could choose not to provide information and links to resources allowing for results to be achieved without incurring the expense of a lawyer, and I could describe myself in a way that implies, or outright states, I am the best person to go to for the legal services I provide, even though there are many lawyers who provide the same services.

Those conflicting interests should be kept in mind any time you read a column written by a business owner or service provider.

Businesses are often in conflict if potential customers rely on them to help decide what products or services they need. The interest of providing reliable advice often conflicts with the interest of maximizing sales. A classic example is an unscrupulous automotive shop, where you might be given a laundry list of required services when taking your vehicle in for an oil change.

But automotive shops don’t have a lock on conflicts that lurk any time a business has expertise that the customer needs to make a purchase decision. And that includes law firms.

For example, a parent might come to me with an old will appointing guardians for their children who have since become adults. They often assume a new will is necessary because of the significant change that guardians are no longer required.

Advising them a will doesn’t require updating solely because guardian appointments are no longer required conflicts with selling will services.

So, conflict of interest should be considered any time you rely on a business to advise you about what products or services you need.

In my view, the worst of conflicts are with politicians looking to be re-elected. It’s what leads me to often exclaim how much I hate politics.

For re-election, a politician needs popularity with a majority of the voting public. But to do the best for his or her constituents, the politician must, at times, implement important though unpopular policies, such as those to save the environment or help minorities. Implementation of the Medical Assistance In Dying (MAID) laws was significantly delayed, taking two series of court battles before the Supreme Court of Canada to finally force the issue because of this horrible conflict of interest.

My wife thinks I’m overly cynical, always skeptical of what selfish interest might be driving what we’re being told. She’s probably right. It’s my cynical side that led me to ponder conflicts of interest in the context of powers of attorney and representation agreements.

If you have ideas about what I’m referring to, please send me an e-mail with your thoughts. I’m interested in knowing how broadly my cynicism is shared.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Importance of representation agreements and advance directives

Health care decisions

“Do I really need a representation agreement? My friend had no difficulty directing the care of her spouse when they were in the hospital with a serious illness.”

Barb, of Kelowna, e-mailed me the day my first end-of-life-related column was published atthe end of January.

She started by writing, “Here you are, not even started yet, and suggestions are pouring in!” And continued, “At some point, I would love you to tackle the situation of making sure you have a personal health directive in place prior to you becoming ill.

“Last year, I had a sister I did a health check on who ended up in hospital. What a mess! I became her advocate with health officials. All she had was a will, which kicks in only after you are dead. Such a stressful time. No one would listen.”

I asked to interview her at some point. That interview was this past week.

Barb has long been a promoter of getting “your ducks in a row.” She talked to her siblings years before about having the full gamut of paperwork done, i.e. a power of attorney, a representation agreement, an advance directive and a will.

But she still faced the quagmire of stressful uncertainty that occurs when those materials are not available.

He sister had a type of slowly progressing dementia but was living independently when she became gravely ill. Barb checked on her sister regularly and got her to the hospital.

The hospital intake went smoothly. Her sister was too ill to communicate for herself and everyone turned to Barb to learn about her sister’s history and condition. Barb was treated as the trusted sister she was.

It was after her sister was put in a ward and the practical need to have consent for medical procedures came up that the problems arose. One procedure that became necessary was to have her sister’s bladder drained. An infection was blocking the natural process and a minor procedure was required to insert a catheter to allow for drainage.

Except in an emergency, medical procedures cannot be performed on you without your consent.

Barb wasn’t armed with her sister’s advance directive, a document I referred to briefly in my last column, where you can give written consent for future medical procedures. Nor was she armed with a representation agreement, the focus of my last column, where her sister could have appointed Barb to give consent on her behalf.

Making matters worse, Barb wasn’t able to tell the medical folks those documents did not exist. She expected her sister had her “ducks in a row” like she recommended years before.

She searched her sister’s condo for the documentation and found other materials, like the useless paperwork from the sale, a decade previously, of her sister’s house. But she did not find the important stuff.

Without an advance directive or a representation agreement, medical folks can turn to a substitute decision-maker. But there was uncertainty about the existence of those materials and Barb wasn’t the top of the default list. Her sister’s daughters were, and they were in Alberta.

Barb was the person best equipped to help direct her sister’s medical care, and she was at her sister’s bedside but she had no authority.

Not only was she unable to help but she was kept in the dark. Your medical status is confidential and cannot be shared with someone without authority.

Imagine the frustration and helplessness Barb felt.

The happy news was that, although the red tape of consent resulted in some delays, Barb’s sister got the excellent care that is characteristic of the fine folks at Kelowna General Hospital and she recovered from her illness.

And, it turns out, her sister had indeed gotten her ducks in a row. Barb helped clean out her sister’s condo when she moved to Alberta to be close to her daughters. Sure enough, a representation agreement and advance directive were found with a boatload of inconsequential materials.

She had her ducks together, just not in a row.

Barb has some hard-earned advice.

First, make a representation agreement and be careful to appoint the most appropriate person as your representative. It doesn’t have to be an expensive and time-consuming process. My last column shared a link to a free form that you can use.

Most people Barb talks to about this issue are reluctant to put their minds to the possibility that they will face a level of illness needing someone to make decisions for them.

Her message to them is they are being unfair to their loved ones as they are the ones that will be are left in the lurch if those steps are not taken.

Her other advice is to keep your representation agreement, advance directive and any other important documentation about your care in a place where they can be found—and tell those who care about you where that is.

Interior Health and other health authorities suggest using a green plastic folder and keeping it on or near your fridge, noting paramedics are trained to first look there for any advance care documents. You can request a free greensleeve here.

Please e-mail me with any questions you might have about this subject matter, and I invite you to review the wonderfully informative “Frequently Asked Questions” Ministry of Health publication about advance care planning you can find here.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.


Making health and personal care decisions for you when you can't

Representation agreements

What is a representation agreement and do I need a lawyer’s help to have one?

The Province of British Columbia has published an incredibly informative and easy to read guide for advance care planning called “My Voice” that can be accessed online. The guide includes forms for the two types of representation agreements that can be used without the assistance of a lawyer.

Some of us will keep our crisp thinking abilities through to a ripe old age when we will pass away peacefully in our sleep. Many won’t.

A representation agreement allows you to appoint someone to make health and personal care decisions for you at times when you do not have the consciousness or thinking ability to make those decisions yourself.

There are two types of representation agreements. Unfortunately, they are referred to by the section number of the Representation Agreement Act, which makes them possible. One is referred to as a “Section 7” representation agreement and the other a “Section 9” agreement.

How unfortunate they were not given descriptive names.

The Section 9 agreement is the more powerful of the two when it comes to health care decisions. It can authorize your representative to give, or refuse, consent to any types of health care, including care that would be necessary to keep you alive.

(I am not going to discuss the Section 7 agreement in this column because I’m already going to be pushing my word limit. Section 7 agreements require a lower level of mental capacity to enter into, provide less robust health care authority and include provisions for a junior version of a power of attorney. Email me if you would like me to write about it at some point.)

None of us can predict our future.

We cannot possibly know in advance what health care decisions will need to be made in every possible circumstance. If we had a crystal ball, we could write those decisions down in a document called an “advance directive”. The My Voice publication I mentioned at the beginning of this column includes that form as well.

Of course, you will want your decisions to be informed by medical advice. When deciding if you want chest compressions as an 87-year-old who is within weeks of dying from cancer, you will want to know from a doctor the likelihood of those compressions restarting your heart, as well as the likelihood of being left with fractured ribs that would make your remaining days miserable.

An advance directive might be something you want as part of your incapacity planning if there are particular health care decisions you know with absolute certainty you want made in a certain way, regardless of circumstances.

When care decisions must be made in my future—when I don’t have the consciousness or thinking ability to make them on my own—I want someone I trust, someone I have shared my wishes and values with, to make fully informed decisions on my behalf.

Is it important to have a representative agreement? What will a doctor do if you have not appointed a representative?

Except in an emergency, a doctor must get your permission to provide care. If you have a Section 9 representation agreement, the doctor will turn to your appointed representative.

If you don’t, the doctor must consult with a default substitute decision-maker unless there is an advance directive that specifically deals with the care decision.

I say “default” because the law provides a priority list of people they must turn to. They must first turn to your spouse (including a common law spouse). If you don’t have a spouse, then it’s an adult child. If you have five adult children, they can turn to any one of them.

I wouldn’t want my care decisions left to a “default substitute” decision-maker.

One reason is they do not have the same level of authority as can be provided to a representative in a Section 9 representation agreement. Another is I don’t want to leave the determination of who makes decisions on my behalf to a default priority list.

It’s important to understand that by appointing a Section 9 representative, you do not give up any of your decision-making authority. A doctor will ignore an appointed representative if you are able to decide on your own.

Also, your appointed representative must follow any instructions or wishes you express to them before you lose your ability to make your own decisions.

If you have not given instructions or wishes applicable to a care decision, your Section 9 representative must make that decision according to what they know about your beliefs and values. It’s important to think about that and share your beliefs, values and any particular instructions or wishes with your appointed representative so they are best armed to make decisions on your behalf if called upon.

Back to the “do I need a lawyer’s help” piece. The form in the Your Voice publication can be modified. Some medical decisions cannot be made for you unless the power to do so is specifically listed in the document. You can change the form to allow a doctor to follow an advance directive and not consult with your representative.

You might want to give your representative the authority to choose medical assistance in dying (MAID) on your behalf in situations where you would absolutely have made that choice for yourself if you had the capacity to do so.

The law doesn’t currently allow for a representative to choose medical assistance in dying on your behalf, but the law might (should, in my view) change.

I will always recommend a lawyer be consulted when taking legal steps, including those that can be taken on your own by filling out free forms.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

More The Last Word articles

About the Author

Lawyer Paul Hergott began writing as a columnist in January 2007. 

Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety.  It was published weekly for 13½ years until July 2020, when his busy legal practice no longer left time for writing.

Paul was able to pick up writing again in January 2024. After transitioning his practice to estate administration and management.

Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.

You are encouraged to contact Paul directly at [email protected] with legal questions and issues you would like him to write about.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

Previous Stories