The Representation Agreement Act and health care consent legislation – 15 years later! – 2

Caregivers/representatives are already stretched to the limit trying to carry out the wishes of a spouse, family or friend.

Why are banks and credit unions refusing to honour Representation Agreements for financial and legal affairs?

Why are health authorities and the Ministry of Health (Health Link) promoting the Medical Orders for Scope of Treatment (M.O.S.T.) form instead of Representation Agreements?

• TheO.S.T. form, like the No-CPR form, is not a way to give consent in advance of incapability. A Representation Agreement is a legally enforceable document in BC and can do this.
• It is critical that any discussions of an adult’s wishes include the representative otherwise it risks undermining the process. This can also avoid conflict of interest for health professionals.

Accessibility is crucial for effective and reliable planning. A properly drafted and understandable Representation Agreement is key to following through on an adult’s wishes.

Unfortunately, much of the education and accompanying legal forms being promoted are not accessible. For example:

• The Representation Agreement forms published by the Ministry of Attorney General in 2011 lack flexibility. The government forms are helpful as an example that the form can be simple, but the wording only allows an alternate to act if a representative is permanently unable to act. It does not allow for a representative to be temporarily unavailable due to sickness, vacation or out-of-cell range. This wording is not required by the law and is not practical for health care and caregiving situations;
• The My Voice:Guide to Advance Care Planning produced by the Ministry of Health in 2012 is confusing to the public and professionals (although an improvement over the previous version produced by Fraser Health end-of-life program and legal inconsistencies); and
• Representation Agreement precedents provided by Continuing Legal Education in its course materials for lawyers are pages too long and include redundant trigger clauses that can delay treatment and may prevent the adult’s wishes from being honoured.

Many community organizations, including those who provide legal services for low-income seniors, perpetuate the problem by promoting and using the same or similar materials.

Recommendation

Nidus recommends that the Ministry of Health work with Nidus to ensure clarity in the delivery of education to the public and health professionals on planning for end-of-life care.

Nidus has repeatedly offered free education and training to financial institutions in BC. The Representation Agreement Section 7 (RA7) offers many more safeguards than a Power of Attorney and has a standardized format. Nidus recommends that the Canadian Bankers Association and Central One (credit unions) collaborate with Nidus on strategies to promote education and best practices with its member institutions on personal planning in BC.

RESOURCES

Registry Fact Sheet: Personal Planning Documents

Registry FAQs

Nidus partnered with BC Courthouse Libraries to raise awareness about BC’s essential legal planning documents and the Nidus Registry. The kick off event was held on September 15th at the Vancouver Public Library CentralBranch with a panel of experts in the field. Questions that were submitted will be answered in a series of posts by Nidus and various panel members. To see photos from the event click Gallery; and click Registry Sing-a-long for the fun of it!