What is Incapacity Planning?

Estate Planning and Litigation

No one plans to become incapacitated, so what does “incapacity planning” mean and what does it involve?  Is this something you need to worry about?  How does it all work?  You may even have heard various terms out there like “Power of Attorney”, “Living Will”, “Advance Directive”, “Power of Attorney for Personal Care”, “Representation Agreement”, and so on.  It probably sounds a little confusing and overwhelming, so let us help to lend some clarity.

First, let’s begin with “incapacity” or what it means to be “incapable” – specifically, we are referring to mental incapacity.  Put simply, it refers to an individual being either temporarily or permanently unable to make decisions or provide consent for him or herself.  This situation might arise in a number of circumstances for example, being unconscious, side effects from certain medications, suffering a head injury or stroke, or having an illness such as Alzheimer’s.

“Incapacity planning” is the process of putting proper legal documents into place so that if you become incapable, you have already designated someone you trust to take care of your financial and legal matters, and/or to make health care decisions on your behalf.  Such planning is important to ensure that your wishes will be respected at a later date, as you may need to rely on someone to make these decisions for you.  With regard to financial and legal matters, this is particularly important if certain assets are under your name alone and need to be accessed to financially support your dependents.  In other cases, you may be the joint owner of real estate and a necessary sale or refinancing will not be possible without your signature.  As for health care matters, you may have certain wishes, and health care or treatment that you would or would not consent to.

So, what documents can you put in place for incapacity planning?  Despite the array of terms you may have heard of, there are really only three types of documents legally recognized under the law of British Columbia and each serves a different purpose:

1.  (Enduring) Power of Attorney

A Power of Attorney allows you to grant an adult or several adults the legal authority to do anything that otherwise only you have the authority to do.  It allows you to grant authority over financial and legal matters, and the scope of authority can be as narrow or broad as you choose.  A Power of Attorney that continues despite any subsequent incapacity on your part is called an Enduring Power of Attorney.  Any Power of Attorney is terminated either when you decide to revoke it while capable, or upon your death.

2.  Representation Agreement

A Representation Agreement allows you to grant an adult or several adults the legal authority to make health care or personal care decisions on your behalf if you are incapable.  While you are still capable, a health care provider is legally required to seek your consent before providing you with health care.  If at any point you are incapable of giving consent, the health care provider must turn to your designated Representative. If you don’t have a Representation Agreement, a health care provider must seek consent from your next-of-kin using a ranked list prescribed by law; in this case, there are certain serious health care decisions that this next-of-kin will not legally be able to make for you such as the continuation or withdrawal of life support.

A second type of Representation Agreement can be used to designate a Representative to take care of routine financial and legal matters on an adult’s behalf; this is used where the adult does not quite meet the mental capacity required to execute a Power of Attorney.  However, this form of Representation Agreement cannot grant decision-making powers that cover certain serious health care decisions.

3.  Advance Directive

An Advance Directive sets out your wishes for health care in the event that you are incapable of expressing these yourself at a later date.  The Advance Directive can be fairly general or contain specific provisions regarding the type of health care you will consent or refuse to.  For some, their desired wishes may relate to certain strongly held preferences or beliefs. As long as your Advance Directive is clear, a health care provider must respect your specified wishes except where:

  1. your wishes, values or beliefs have since changed while you were still capable;
  2. there have since been significant changes in medical knowledge, practice, or technology relevant to the particular situation; or
  3. it is against the law.

If you have a Representation Agreement in place, your appointed Representative is also required to respect your Advance Directive.

Now that you have a general idea of what incapacity planning involves, your next thought is probably “Do I need this?”  Whether you need or should execute any or all of these documents is a personal decision and depends on your circumstances and views.  You might consider guidance on incapacity planning if any of the following apply to you:

  • you have very strongly held moral or religious convictions for health care and the medical treatment you are willing or not willing to receive
  • you do not agree with the priority ranking of the prescribed next-of-kin decision-maker
  • you have a blended family where a dispute may arise between your children if you are mentally incapacitated
  • you are a senior with no spouse or children living in B.C.
  • there are assets in your name alone which are required to support your dependents
  • you are at risk for serious illness such as stroke, heart attack, or dementia
  • you have been diagnosed with a degenerative illness
  • you would prefer to have peace of mind

For more information on how we can assist, please contact one of the Trusts and Estate law practice group lawyers.