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The-Last-Word

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.



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Does a power of attorney have to cost a lot of money?

Creating a power of attorney

I presented at an end-of-life seminar last weekend. An attendee reported at least one law firm is charging $500 for a power of attorney.

That might be good value. I haven’t done the market research to find out what lawyers typically charge.

Last week, I shared how you can create a legal will in a pinch, without a lawyer. Can you do the same with a power of attorney?

Yes. Follow this link to an excellent two-page information bulletin about powers of attorney, published by the Province of British Columbia.

In that bulletin is a link to a web page titled “Incapacity planning” that contains links to various free forms. For the power of attorney form, click here.

You’ll need a lawyer or notary to witness parts of the form for it to be effective for land transactions, but if that isn’t required and you follow the instructions on the form, you will end up with a fully effective power of attorney without paying any money.

There is however a caution. I recommend you consult a lawyer about your will and power of attorney, even though it’s possible to create them without a lawyer’s help.

There are all sorts of limitations to the basic—though legal—self-made will I wrote about last week. In a future column, I’ll discuss the value a lawyer can provide by drafting a will with clauses that fit your particular circumstances and wishes. Likewise, the free form for a power of attorney is also legal, but it has limitations.One limitation has to do with land transactions, even if you involve a lawyer or notary to witness the necessary portions of the form.

British Columbia law provides a default that the land transaction power of a power of attorney expires after three years. A lawyer would add a clause to the document to remove that default.

Another restricts your attorney’s power to give gifts, loans and charitable donations.

British Columbia law puts a default limit on how much your attorney can give or loan on your behalf to $5,000 per year (or 10% of your income, whatever is less).

You might want your attorney to continue financially supporting a grandchild’s education, as well as charitable organizations you have supported, which might far exceed $5,000 per year. That limitation can be removed as well by adding a clause to the document.

There are other additions to the basic form that can be of significant value. Consult a lawyer for a power of attorney that best suits your particular circumstances and wishes.

But back to the readily available and free form. It’s an “enduring” power of attorney, containing the necessary clause allowing your attorney to continue after you have lost the capacity to make financial decisions for yourself.

Armed with it, the person you appoint has dramatic power. They could liquidate your investments and sell your real estate.

That’s wonderful if was to be done so is under your specific instruction, or, if you’re no longer capable of managing your financial affairs, it’s in your best interests but not if you’ve appointed someone unworthy of your trust. So, please take great care.

Would you have attended the end-of-life seminar I presented last weekend? E-mail me if you’d like notifications of future events. Consider connecting with me on Facebook where I announce such things. I’ll try to remember to include notifications in future columns as well.

Next week, I will talk about representation agreements as I’ve done with wills and powers of attorney. Tune in for a link to free forms and a discussion about what representation agreements are all about.

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



Making sure your will is valid

Setting your final wishes

What are the magic words necessary for a will to be legal (or “valid” as we say in legal circles)?

In my last column, I explained that even the most minimal of your words can be “cured” as a valid will, even if they are in a computer file. What’s necessary is for a judge to be satisfied that your words set out your fixed and final wishes about what you want done with your estate after you die (your testamentary intentions).

Many people make notes about what they might want to do with their estate without intending those notes to set out their fixed and final expression. For an invalid will to be cured, there must be reliable evidence that the document was created by you and that it actually sets out your testamentary intentions.

It’s best not to leave it up to an uncertain court application—particularly uncertain because you won’t be there to tell the judge that you are the one who wrote those words, nor what your intentions were.

And the court application isn’t cheap.

Let’s get back to the scenario in my last column. You’re on your way to the hospital for major surgery. Any major surgery comes with the risk of death, however minimal. You realize you have never made a will.

I’ll add some details to make it more interesting.Your only close family are your brother and father. You have a very close relationship with your brother, who has been an incredible support. The most significant was helping with the down payment on your condo. Without his help, purchasing it would not have been possible. What a wonderful brother.

Your dad’s a different story. After your mom passed away, your dad found a new partner who you can’t stand. You might have received the down payment help from your dad, but his new partner convinced him to leave you on your own.

It’s very important to you that your condo go to your brother if you don’t make it through the surgery. Certainly, anyone other than your dad.

The stakes are high because if you do not create a valid will, that’s exactly what will happen.

Why? British Columbia has a law that sets out a hierarchy of who will get your estate if you die without a will. Absent a spouse or children, it goes to your parents. Magic words? There are none.

Your words must simply make it clear you are setting out your testamentary intentions, i.e. who you want to receive your estate if you die. Having a title that says “Will” or “Last Will” is a very helpful indication of that intention. But it’s not a legal requirement.

The following would be plenty: “I want my estate to go to my brother”. If you’ve only got one brother, there is no need to even name him. You would save your brother a bit of hassle by appointing him your executor (“I appoint my brother as executor”), but the appointment of an executor not required for a will to be valid.

The only magic to making a will valid has to do with how it’s signed and witnessed. To be valid, you must have two adult witnesses who are present with you when you sign the will, and who then each sign the will in your presence.

One of those witnesses should not be your brother. A gift to someone who witnesses your will is void. Though like many other things in this area of law, even that can be fixed by an application to a judge if the judge is satisfied that you truly intended to make that gift.

And that’s it. It can be handwritten on whatever you’ve got to write on. ( i.e. a napkin would do.)

You can then be rolled into surgery, comforted that you have a valid will naming your brother as beneficiary.

I want to be very clear here, I don’t recommend this kind of bare bones approach, though it will do in a pinch.

I recommend taking the time and incurring the expense of consulting a lawyer with estate planning expertise, as well as an estate tax accountant, as soon as possible after you make it through your major surgery.

A valid will is not the end goal. The goal is the outcome, after you die, that you wanted. In this extremely simple fact pattern, that goal will very likely be achieved if you die during surgery.

I say “very likely” because there are unlikely scenarios I could share with you where the estate would actually go to your dad, even with that valid will. A lawyer with estate planning expertise can anticipate and deal with those scenarios to ensure that doesn’t happen.

As I’ve indicated before, I don’t provide those services, but I can refer you to those who do.

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





When is a will actually a will?

Last-minute will

You come to terms with your mortality on your way to hospital for major surgery.

You never got around to having a will prepared. Can you quickly write a will while you wait to be processed? Are there special words necessary to make it legal? Can it be written on a scrap piece of paper? Does it have to be signed in some specific way?

I’m going to answer those questions by telling the true story of a Mr. Hubschi.

A detailed version of the story, along with fascinating legal analysis, is the reported decision of B.C. Supreme Court Judge Trevor Armstrong in the case of Hubschi Estate (Re), 2019 BCSC 2040 that can be accessed online here.

Hubschi was born in Vancouver on March 7, 1961, to a Swiss mother. He never knew his mother, who had put him into the care of a children’s aid society at birth. At age three, he was placed into the foster care of Mary and Jack Stack, who already had five of their own children.

It was a wonderful foster home. The Stacks treated young Hubschi as one of their children.

Armstrong described Hubschi’s relationship with his foster siblings: “There is no doubt that Mr. Hubschi had a close attachment to all members of the Stack family and considered them, as they did him, siblings in this tight knit family relationship”.

But Hubschi was never adopted. He never married and had no children of his own.

In the spring of 2017, at the age of 56, he underwent a surgery and passed away 22 days after being discharged from hospital.

At the time of his death, he had approximately $175,000 in savings and some other assets.

I will devote a future column to what happens to your assets if you die without a will. There is a set of rules but in Hubschi’s circumstances, his estate would have gone to extended relatives in Switzerland who he never met or had a relationship with.

His foster siblings searched his apartment unsuccessfully for a will. They managed to unlock his computer and found a file called “Budget for 2017” that appeared to have been modified on the day of his death.

Armstrong described Hubschi’s circumstances at the time: “…at that time he was physically unable to move around due to pain in his leg and was most likely confined to his apartment due to his post-surgery complications.”

The computer file included the following words: “Get a will made out at some point. A5 – way assets split for remaining brothers and sisters. Greg, and at or Trevor as executor.”

That’s an exact quote, you can read it for yourself in paragraph 15 of the court decision.

Circling back to the scenario I presented at the beginning of this column. There are no special words. It’s was not even in print, let alone on a scrap of paper, and of course it’s unsigned.

British Columbia law does have some specific requirements for a will to be valid. The computer document did not meet those requirements. But B.C. law allows a judge to “cure” a defective will if the judge is satisfied it represents the deceased person’s testamentary intentions.

After considering all the circumstances, Armstrong was satisfied the computer file contained Hubschi’s testamentary intention that his estate be divided five ways between his brothers and sisters.

The court order said: “[60] I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate”.

So yes, you can quickly write a will on a scrap of paper on your way into surgery without any magic words and without following proper signature/witness protocols and that scrap of paper will be “cured,” provided a judge is satisfied that what you wrote represents your testamentary intentions.

Please read my next column, when I share the magic required for your handwritten, scrap-of-paper will to be valid and not require your beneficiaries to go through the uncertain and expensive process of asking a judge to “cure” it.

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



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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.



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

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