Legal: Planning for Incapacity
This section was adapted from the “United Way Metro Vancouver Family & Friends Caregivers Information and Resource Handbook 2016” with permission from the author.
We are all familiar with estate planning, which is about making arrangements for our assets once we have died. A Will is a legal document people use to give legal authority to someone (an executor) to settle their estate AFTER THEY DIE. The term personal planning is about making arrangements in case you need help managing your affairs due to illness, injury, or disability WHILE YOU ARE STILL ALIVE. Who should plan ahead? Personal planning is for everyone 19 years or older (adults). An unexpected health crisis like a bad fall or a stroke can happen to anyone. The older we become, the greater the likelihood of a diagnosis of a long-term degenerative illness, such as dementia. While we dislike thinking about losing the ability to make decisions and express ourselves, personal planning lets us be pro-active. What does personal planning cover? Personal planning covers all areas of life: our health, personal matters, legal affairs, and finances. You will encounter the term advance care planning – it is used by the Ministry of Health and the Health Authorities, and it focuses only on discussions about health care, which is just one of the four areas of personal planning, which are: 1) Health Care, 2) Personal Care, 3) Legal Affairs and 4) Financial Affairs. Why plan? Making your own arrangements has many benefits: it makes things easier on your family and friends should decisions need to be made on your behalf; it avoids the need for the government to be involved in your personal and private affairs; and it lets you stay in control of your life by ensuring that those you trust can advocate for you and carry out your wishes, if you need help speaking up for yourself. What if an adult does not plan? Planning is voluntary, but if you cannot manage your own affairs and do not make arrangements, other laws or the court will determine who can make decisions for you. This is referred to as the ‘default scheme’ which well may not lead to decisions you would not agree with.
Health Care, Personal Care, Legal Affairs and Financial Affairs
This section was adapted from the “United Way Metro Vancouver Family & Friends Caregivers Information and Resource Handbook 2016” with permission from the author.
Nidus Personal Planning Resource Centre and Registry Nidus is a non-profit organization that provides education, support and assistance with personal planning. Personal planning involves making arrangements, in case you need help managing your affairs during your lifetime due to an illness, injury, or disability. Personal planning differs from estate planning, which is about making arrangements for after your death. Personal planning covers all areas of your life: health care, personal care, legal affairs and financial affairs. Nidus provides free information on BC’s legally recognized documents for personal planning: Representation Agreements, Enduring Powers of Attorney, and Advance Directives. Note: There are other tools that some adults may use in addition to their legal documents. These can give guidance or instruction to their authorized personal supporters. Such tools are legally non-binding on their own. Examples include: a ‘living will’, a ‘record of investment and financial management preferences’, and a ‘values and beliefs discussion guide’. Nidus Steps for personal planning include:
- Gathering information on legal documents and how they apply to you.
- Identifying your personal supporters; personal supporters can be friends or family members whom you trust.
- Discussing roles, duties, and areas of authority to be covered (health care, personal care, financial affairs, and legal affairs).
- Making the relevant legal documents.
- Registering your completed documents with the Nidus Registry.
- Distributing copies of your completed documents as needed.
- Reviewing your documents once a year with your personal supporters.
Where to start? Check out the www.nidus.ca information on BC’s legal documents: Representation Agreement and Enduring Power of Attorney and Advance Directive . You can also watch Videos and read Stories about the importance of planning for incapacity, or determine your Path to Personal Planning.
Legal Document Templates
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Health Care Only
This section was adapted from the “United Way Metro Vancouver Family & Friends Caregivers Information and Resource Handbook 2016” with permission from the author.
Advance care planning www.gov.bc.ca/advancecare is a term used by the health care system. It encourages people to plan for health care issues, in case you become incapable. An Advance Directive (AD) is a legal document under BC legislation as of September 1, 2011. It is for writing an instruction about health care you do or do not want if you become incapable. An AD cannot appoint a person to represent you and your wishes; it is only for writing an instruction and it is only about health care. You must be capable of understanding the health care matters covered, in order to make an AD. The Health Care Consent and Care Facility Admission Act sets out the requirements for making an AD, but it does not provide any wording for instructions that can be relied on. You might talk with your family doctor about your AD and they may agree to follow the wording you have come up with for your instruction(s) – because you discussed it. However, you cannot be sure a hospital doctor – who does not know you – will follow it. They may interpret it differently. An AD is not equivalent to making a Representation Agreement or having a representative. An AD can only address specific health care issues and if you become incapable, a health care provider has to take it “as is.” If your instruction seems unclear, the health care provider does not have to follow it. You can make an AD as well as an Representation Agreement (section 9). Give your appointed representative a copy of your AD and discuss it with them. If you become incapacitated, your representative will be able to have a discussion with the health care provider to clarify the meaning of your instruction and say when it must be applied.
What is My Voice? My Voice: Expressing My Wishes for Future Health Care Treatment – Advance Care Planning Guide is a free 2013 BC Ministry of Health 56 page publication which explains advance care planning and contains an Advance Directive Form provided by the Ministry of Health on page 5. A copy of My Voice is available in English Version (PDF), Punjabi Version (PDF), and Simplified Chinese Version (PDF). If you wish to order a print copy (English only), please call Crown Publications, Mon. – Fri., 8:30am – 4:30pm at 250-387-6409 or toll-free in BC, 1-800-663-6105. A charge for shipping and handling, plus applicable taxes will be applied to your order. Note: The 2013 My Voice is being updated and the 2017 edition is expected to be published in the autumn of 2017.
A great deal of information and resources are on the BC Ministry of Health website to promote advance care planning, including information in Chinese (Simplified) and Punjabi and for the First Nations community.
Adult Guardianship/Committees
The Public Guardian and Trustee of British Columbia has a booklet on adult guardianship (also called Committeeship) which a family or friend might have to deal with if the person they care for becomes incapacitated and has not done legally recognized planning: It’s Your Choice – Personal Planning Tools in English, Chinese (Traditional), Filipino, Punjabi, Spanish and Vietnamese.
Legal Professionals (Lawyers and Notaries
To locate a lawyer, contact the Lawyer Referral Service 604-687-3221. Lawyers who practice in the areas of Wills and Estates will be familiar with the Enduring Power of Attorney. To find a notary public near you, phone 604-681-4516 or search online.
Legal: Wills
A will is a set of legally recognized directions/instructions about what you want to have done with your estate after you die. If you die without a will, i.e. die ‘intestate’, government laws will determine how your assets – your estate – will be distributed. Explained another way, if you die without YOUR WILL, the law will assign you an uncontestable GOVERNMENT WILL.