Making Your Own Health Care or Personal Care Decisions

In estate planning we often recommend individuals ensure that mechanisms are in place in the event they are unable to make personal decisions regarding their legal affairs, financial affairs, health care and personal care. These include a Power of Attorney and Representation Agreements.

A Power of Attorney is a legal document appointing someone of your choosing to handle your legal and financial affairs in the event you were incapable of making these decisions. A Power of Attorney does not authorize the individual appointed as your attorney to make medical and personal care decisions for you.

A Representation Agreement allows an individual to appoint a representative to make their health and personal care decision in the event they are unable to do so. In the Representation Agreement you would set out the representatives’ duties and responsibilities as well as a set out your wishes pertaining to medical and personal care. Unlike a Power of Attorney, a Representation Agreement only comes into effect when the individual who made the Representation Agreement becomes incapacitated.  

There are two types of Representation Agreements under the Representation Agreement Act:

• Section 9: agreements under section 9 are the most powerful health agreements and allow a representative to make decisions pertaining to your health and personal care. These agreements also allow a representative to make decisions about life support and life prolonging medical interventions. Agreements under section 9 must be made prior to the individual who made the Representation Agreement becomes incapacitated.
• Section 7: agreement under section 7 allows a representative to make some decisions regarding your personal care, routine financial management and legal affairs but a representative is not authorized to make decisions about life support or life prolonging medical interventions. Unlike a Section 9 Representation Agreement, an individual may still make an agreement under Section 7 even if they have diminished capacity. Various factors must be assessed under Section 8 of the Representation Agreement Act in determining if an individual is incapable of making a Section 7 Representation Agreement including but not limited to:

1. 1. whether the adult communicates a desire to have a representative make decisions;
   2. whether the adult demonstrates choices and preferences;
   3. whether the adult is aware that making the agreement means that a representative may make a decision that will affect them; and
   4. whether the adult has a relationship with the representative that is characterized by trust.

   Representation Agreements allow you to make advance decisions about your care which relieves your family and friends from the emotional stress and turmoil of having to make these difficult decisions. Making these decisions in advance allows you to have a say in what is to happen to you but also avoids conflict arising between family members if they disagree on what should be done about your health and personal care.

   It is recommended that if you experience an illness or are going into surgery for a medical procedure that you have mechanisms in place appointing a representative to make personal and health care decisions on your behalf. If you are looking to have a Power of Attorney or a Representation Agreement prepared on your behalf, please contact Cote & Evans Trial Lawyers and arrange a free 30-minute consult.