Enduring Power of Attorney: Not for Health Care
Written by Joanne on January 3, 2013
Why do people continue to believe that an Enduring Power of Attorney covers decisions about health care?
This question highlights one of the persistent myths about Power of Attorney and Enduring Power of Attorney. These documents can give authority for someone to act on your behalf for financial and legal affairs. Only a Representation Agreement can give authority for someone to act on your behalf for health care and personal care matters.
There are a number of reasons for the misunderstanding that an Enduring Power of Attorney can cover health care. In the past, before the Representation Agreement Act became law, there was no legal way in B.C. to authorize someone to make health care decisions on your behalf. If you were incapable of consent, the doctor usually turned to your next-of-kin. But you might have 3 or 4 adult children and there was uncertainty about who to choose. In this vacuum, some health care providers theorized that if you had made an Enduring Power of Attorney to give someone authority to manage your finances if you became incapable, then you might also trust that person to make health care decisions. There was no legal basis for it, but it became practice.
For the most part, the public accepted this approach and hospitals and other health care institutions added the Enduring Power of Attorney to its intake forms and the practice drifted into the realm of policy. Some legal professionals even started adding health care authority to the Enduring Power of Attorney documents.
Some of the misinformation has persisted because of differences in legislation among the provinces. In Ontario, for example, there are two planning documents: Continuing Power of Attorney for Property (to cover financial and legal affairs) and Power of Attorney for Personal Care (to cover health care and personal care matters). The media and other national institutions will often write about the Ontario law as if it applies to all of Canada.
When the law reform of adult guardianship legislation began in 1989 in British Columbia, community groups started with research about the current legislation and this brought to light the mismatch between the law and the practice of the Enduring Power of Attorney with regard to health care decisions. But even after the Representation Agreement Act became law in 2000, and B.C. had a very strong and specific legal document the public could use for planning for health care and personal care, the belief that this was covered by the Enduring Power of Attorney persisted. In part, this is because hospitals and other care settings did not change their forms. In fact, forms and information produced by most residential care facilities make no mention of Representation Agreements even though their focus is on providing health care and personal care to residents.
Change takes time. It is especially difficult for the public when government, institutions and professionals are among the last to get up-to-speed. Many people, especially seniors, will lose out on the opportunity to plan because they were relying on old, out-of-date information. Fortunately, there are community groups throughout the province helping Nidus to get the word out about Representation Agreements.