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Difference between revisions of "Representation Agreements (15:V)"
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Representation Agreements (15:V) (view source)
Revision as of 19:36, 24 January 2017
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In the BC health care system, health care providers must speak directly to an individual in order to inform them about health care choices and consequences. An adult with capacity has the right to give or refuse consent for treatments. Due to illness, accident or disability, an individual needing health care may not be capable of understanding advice, making informed decisions, or providing meaningful consent to proposed treatment. If the adult has previously enacted an RA, then the Representative(s) will be able to give or refuse consent on behalf of the capable adult, acting as appointed substitute decision-maker(s) to make decisions according to the incapable adult’s personal wishes, values and beliefs. | In the BC health care system, health care providers must speak directly to an individual in order to inform them about health care choices and consequences. An adult with capacity has the right to give or refuse consent for treatments. Due to illness, accident or disability, an individual needing health care may not be capable of understanding advice, making informed decisions, or providing meaningful consent to proposed treatment. If the adult has previously enacted an RA, then the Representative(s) will be able to give or refuse consent on behalf of the capable adult, acting as appointed substitute decision-maker(s) to make decisions according to the incapable adult’s personal wishes, values and beliefs. | ||
An individual making an RA may be in a vulnerable position due to family dynamics, cognitive challenges, discriminatory beliefs about people with disabilities, or other factors. Vulnerability may create more opportunities or potential for abuse. | An individual making an RA may be in a vulnerable position due to family dynamics, cognitive challenges, discriminatory beliefs about people with disabilities, or other factors. Vulnerability may create more opportunities or potential for abuse. Anyone helping another create an RA should be aware of indicators of abuse and follow guidelines outlined in this chapter that will help them to notice abuse. If necessary, the adult should be met with alone to ensure that the adult truly wishes to create an RA and give powers to the potential representative. | ||
Also note that, according to s 3.1 of the amended RAA, an adult must not be required to have an RA as a condition of receiving any good or service. | |||
RAs may come into effect immediately or upon future incapability. The vast majority of registered RAs come into effect immediately. Students should be aware that the first duty of a Representative is to consult and abide by the personal wishes, values and beliefs of the adult, at all times. | RAs may come into effect immediately or upon future incapability. The vast majority of registered RAs come into effect immediately. Students should be aware that the first duty of a Representative is to consult and abide by the personal wishes, values and beliefs of the adult, at all times. | ||
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*living arrangements of the adult. | *living arrangements of the adult. | ||
A s 7 RA may also allow the Representative to take care of '''routine financial affairs''' of the adult | A s 7 RA may also allow the Representative to take care of '''routine financial affairs''' of the adult. "Routine management of financial affairs" is defined in the RA ''Act Regulation'' 2(1) as: | ||
*paying bills; | * paying the adult's bills; | ||
*receiving and depositing | * receiving the adult's pension, income and other money; | ||
*purchasing | * depositing the adult's pension, income and other money in the adult's accounts; | ||
*making investments. | * opening accounts in the adult's name at financial institutions; | ||
* withdrawing money from, transferring money between or closing the adult's accounts; | |||
* signing, endorsing, stopping payment on, negotiating, cashing or otherwise dealing with cheques, bank drafts and other negotiable instruments on the adult's behalf; | |||
* renewing or refinancing, on the adult's behalf, with the same or another lender, a loan, including a mortgage, if (i) the principal does not exceed the amount outstanding on the loan at the time of the renewal or refinancing, and (ii) in the case of a mortgage, no new registration is made in the land title office respecting the renewal or refinancing; | |||
* Making payment on the adult's behalf on a loan, including a mortgage, that (i) exists at the time the representation agreement comes into effect, or (ii) is a renewal or refinancing under paragraph (h) of a loan referred to in that paragraph; | |||
* taking steps under the Land Tax Deferral Act for deferral of property taxes on the adult's home; | |||
* taking steps to obtain benefits or entitlements for the adult, including financial benefits or entitlements; | |||
* purchasing, renewing or cancelling household, motor vehicle or other insurance on the adult's behalf, other than purchasing a new life insurance policy on the adult's life; | |||
* purchasing goods and services for the adult that are consistent with the adult's means and lifestyle; | |||
* obtaining accommodation for the adult other than by the purchase of real property; | |||
* selling any of the adult's personal or household effects, including a motor vehicle; | |||
* establishing an RRSP for the adult; | |||
* making contributions to the adult's RRSP and RPP; | |||
* converting the adult's RRSP to a RRIF or annuity and creating a beneficiary designation in respect of the RRIF or annuity that is consistent with the beneficiary designation made by the adult in respect of that RRSP; | |||
* making, in the manner provided in the Trustee Act, any investment that a trustee is authorized to make under that Act; | |||
* disposing of the adult's investments; | |||
*exercising any voting rights, share options or other rights or options relating to shares held by the adult; | |||
* making donations on the adult's behalf to registered charities, but only if (i) this is consistent with the adult's financial means at the time of the donation and with the adult's past practices, and (ii) the total amount donated in any year does not exceed 3% of the adult's taxable income for that year; | |||
* in relation to income tax, (i) completing and submitting the adult's returns, (ii) dealing, on the adult's behalf, with assessments, reassessments, additional assessments and all related matters, and (iii) subject to the Income Tax Act and the Income Tax Act (Canada), signing, on the adult's behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii); | |||
* safekeeping the adult's documents and property; | |||
* leasing a safety deposit box for the adult, entering the adult's safety deposit box, removing its contents and surrendering the box; | |||
* redirecting the adult's mail; | |||
* doing anything that is: (i) consequential or incidental to performing an activity described above and (ii) necessary or advisable to protect the interests and enforce the rights of the adult in relation to any mater arising out of the performance of that activity. | |||
For greater clarity, the RA Act Regulations state that the routine management of the adult's financial affairs do '''NOT''' include the following: | |||
*(a) using or renewing the adult's credit card or line of credit or obtaining a credit card or line of credit for the adult; | *(a) using or renewing the adult's credit card or line of credit or obtaining a credit card or line of credit for the adult; | ||
*(b) subject to subsection (1) (h), instituting on the adult's behalf a new loan, including a mortgage; | *(b) subject to subsection (1) (h), instituting on the adult's behalf a new loan, including a mortgage; | ||
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*(g) acting, on the adult's behalf, as director or officer of a company. | *(g) acting, on the adult's behalf, as director or officer of a company. | ||
The creation of a s 7 RA does not require the services of a lawyer | The creation of a s 7 RA does not require the services of a lawyer. However, a s 7 RA for the adult does not permit a Representative to make health care and personal decisions that involve decisions to refuse health care necessary to preserve life, or to physically restrain, move or manage the adult. | ||
If there is a conflict between an enduring POA and a s 7 RA which includes routine management of financial affairs, the enduring POA will take priority. | If there is a conflict between an enduring POA and a s 7 RA which includes routine management of financial affairs, the enduring POA will take priority. | ||
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=== 2. Section 9 Representation Agreements === | === 2. Section 9 Representation Agreements === | ||
Section 9 RAs designate a substitute decision-maker for significant and sometimes very personal or more controversial health or personal care decisions, including: | Section 9 RAs designate a substitute decision-maker for significant and sometimes very personal or more controversial health or personal care decisions. Under this section, representatives can do anything that the representative considers necessary in relation to the personal care or the health care of the adult, including: | ||
*where the adult is to live and with whom, including whether the adult should live in a care facility; | *where the adult is to live and with whom, including whether the adult should live in a care facility; | ||
*whether the adult should work and, if so, the type of work, the employer, and any related matters; | *whether the adult should work and, if so, the type of work, the employer, and any related matters; | ||
*whether the adult should participate in any educational, social, vocational or other activity; | *whether the adult should participate in any educational, social, vocational or other activity; | ||
*whether the adult should have contact or associate with another person; | *whether the adult should have contact or associate with another person; | ||
*whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity; *day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult; | *whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity; | ||
*day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult; | |||
*giving or refusing consent to health care for the adult, including giving or refusing consent in the circumstances specified in the RA to specific kinds of health care, even where the adult refuses to give consent at the time the health care is provided; and | *giving or refusing consent to health care for the adult, including giving or refusing consent in the circumstances specified in the RA to specific kinds of health care, even where the adult refuses to give consent at the time the health care is provided; and | ||
*physically restraining, moving and managing the adult and authorizing another person to do these things, if necessary to provide personal care or health care to the adult | *physically restraining, moving and managing the adult and authorizing another person to do these things, if necessary to provide personal care or health care to the adult | ||
A representative under s 9 RA must not do the following, unless expressly provided for in the RA: | |||
*give or refuse treatment in accordance with s 34(2)(f) of the HCCFA. | *give or refuse treatment in accordance with s 34(2)(f) of the HCCFA. | ||
*make arrangements for the temporary care and education of the adult’s minor children, or any other person who is cared for or supported by the adult; or | *make arrangements for the temporary care and education of the adult’s minor children, or any other person who is cared for or supported by the adult; or | ||
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S 34(2)(f) pertains to refusing substitute consent to health care necessary to preserve life (s 18, HCCFA.) In a s 9 RA, if a Representative is provided the power to give or refuse consent to health care for the adult, then the Representative may give or refuse consent to health care necessary to preserve life (s 9(3), RAA). Some other health decisions are also excluded from potential powers, e.g. “sterilization for non-therapeutic purposes” (s 11(2), RAA). | S 34(2)(f) pertains to refusing substitute consent to health care necessary to preserve life (s 18, HCCFA.) In a s 9 RA, if a Representative is provided the power to give or refuse consent to health care for the adult, then the Representative may give or refuse consent to health care necessary to preserve life (s 9(3), RAA). Some other health decisions are also excluded from potential powers, e.g. “sterilization for non-therapeutic purposes” (s 11(2), RAA). | ||
The creation of a s 9 RA no longer requires the services of a lawyer. | The creation of a s 9 RA no longer requires the services of a lawyer. However, careful attention should be paid to the requirements and powers given under s 7 and s 9 RAs to determine which one best suits the needs of the Adults. | ||
Prior to September 2011, a s 9 RA could include broad financial powers, equivalent to those given in a POA. The new PAA says this broad authority in an RA is now treated as if it were an enduring POA, and the Representative must follow the requirements under the PAA to use these powers (s 44.2 Transitional Provision). | Prior to September 2011, a s 9 RA could include broad financial powers, equivalent to those given in a POA. The new PAA says this broad authority in an RA is now treated as if it were an enduring POA, and the Representative must follow the requirements under the PAA to use these powers (s 44.2 Transitional Provision). | ||
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This is because the College of Physicians and Surgeons of British Columbia’s “Professional | This is because the College of Physicians and Surgeons of British Columbia’s “Professional | ||
Standards and Guidelines” regarding MAiD clearly prohibit consent given through Ads and RAs | Standards and Guidelines” regarding MAiD clearly prohibit consent given through Ads and RAs. The Professional Standards and Guidelines have weight in law pursuant to section 5(2) of the Medical Practitioners Regulation under the Health Professions Act. | ||
For more information on the Standards and Guidelines of the College of Physicians, please see their document on MAiD at: https://www.cpsbc.ca/files/pdf/PSG-Medical-Assistance-in-Dying.pdf | For more information on the Standards and Guidelines of the College of Physicians, please see their document on MAiD at: https://www.cpsbc.ca/files/pdf/PSG-Medical-Assistance-in-Dying.pdf | ||
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Section 5(1)(a) of the RAA specifies that an individual who is 19 years of age or older can be appointed as Representative unless that person is: | Section 5(1)(a) of the RAA specifies that an individual who is 19 years of age or older can be appointed as Representative unless that person is: | ||
*providing personal care or health care services to the adult for compensation, unless the caregiver is a | *providing personal care or health care services to the adult for compensation, unless the caregiver is a child, parents, or spouse of the aduts, or; | ||
*working as an employee of a facility in which the adult resides and through which the adult receives personal care or health care services. | *working as an employee of a facility in which the adult resides and through which the adult receives personal care or health care services. | ||
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Upon application by a Representative, the court may exempt the Representative from the duty to comply with the instructions or wishes the adult expressed while capable. | Upon application by a Representative, the court may exempt the Representative from the duty to comply with the instructions or wishes the adult expressed while capable. | ||
Adults should encourage an adult to communicate instructions and wishes to the named Representative(s). This should be done in writing (including by e-mail or recorded transmission), but can also be done orally, for as long as the adult has capacity. It is best that the Representative(s) know exactly what the adult would want. | |||
=== 2. Delegation of Authority === | === 2. Delegation of Authority === | ||
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The adult who executes the Representation Agreement (RA) must have mental capacity. For guidance on mental capacity, refer to section II.B.3: Mental Capacity — Representation Agreement in this chapter. | The adult who executes the Representation Agreement (RA) must have mental capacity. For guidance on mental capacity, refer to section II.B.3: Mental Capacity — Representation Agreement in this chapter. | ||
The RA must also be in writing, signed and witnessed (s 13). The adult and each of the Representative(s) must sign the RA (s 13(2)). Two adults must witness the signatures, | The RA must also be in writing, signed and witnessed (s 13). The adult and each of the Representative(s) must sign the RA (s 13(2)). Two adults must witness the signatures. However, only one witness is necessary if that witness is a lawyer and member in good standing with the Law Society of BC or is a member in good standing of the Society of Notaries Public. | ||
Witnesses cannot be (s 13(5)): | Witnesses cannot be (s 13(5)): | ||
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An RA becomes effective on the day it is executed, unless the RA specifies that it is to become effective at some later time based upon a triggering event (e.g. loss of capacity). According to s 15 of the RAA, the RA must specify how a triggering event is to be confirmed and by whom (e.g. loss of capacity confirmed by two medical professionals). | An RA becomes effective on the day it is executed, unless the RA specifies that it is to become effective at some later time based upon a triggering event (e.g. loss of capacity). According to s 15 of the RAA, the RA must specify how a triggering event is to be confirmed and by whom (e.g. loss of capacity confirmed by two medical professionals). | ||
Although there is no legal requirement to register an RA, registration may be done through the Nidus e-Registry. When a person registers, he or she can decide which organizations can access his or her record. For more information contact Nidus Personal Planning Centre | For more information on preparing documents, consult the '''Appendix''' or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section II. C: Resource Organizations of this chapter. | ||
Although there is no legal requirement to register an RA, registration may be done through the Nidus e-Registry. When a person registers, he or she can decide which organizations can access his or her record. For more information contact Nidus Personal Planning Centre. | |||
== F. Changing, Revoking or Ending a Representation Agreement == | == F. Changing, Revoking or Ending a Representation Agreement == | ||