Seniority: Maintain control despite mental incompetency

Nobody likes to think about a time when their mental faculties could be impaired by illness, disease or old age.

Of all the things a person has to deal with as they age, concerns about mental incompetency might well be the worst.

Nobody likes to think about a time when their mental faculties could be impaired by illness, disease or old age, but it’s a question lawyers like Laurence Anderson of the Vernon and Thompson Law Group have to deal with regularly on behalf of clients.

The Will, the Power of Attorney, and the Representation Agreement are the “big three” when it comes to planning one’s final years. The will covers what happens after you die, the Power of Attorney (PoA) covers what happens to your money if you’re deemed mentally incompetent, and the Representation Agreement is there to inform medical practitioners as to who will make medical decisions on your behalf should you be unable to do so yourself.

Of the three, the Representation Agreement (RA) is probably the least understood, says Anderson, possibly because it’s a relatively new kind of document that most people haven’t had to contemplate yet. But that is changing as people live longer, thereby increasing the likelihood of some form of mental incapacity in their life.

“More people have them (representation agreements) now than people did 10 years ago,” Anderson states, “but even still, most people don’t have one in place, primarily because they don’t want to spend the money.”

A typical Representation Agreement is about 12 pages long (compared to a Power of Attorney document, which runs about three or four pages) and costs about $400, says Anderson.

Most people have a vague understanding of what used to be called a “living will,” says Anderson. The “living will” was a document people put together most often to cover situations in which a person was on life support, and what should happen in such a situation.

However, the “living will” was not supported in law until 2001, when the law was changed to catch up with what was happening in the real world. Since then, the “living will” has been known as a representation agreement.

The RA is designed to give instructions about who will make medical decisions on your behalf in case of mental incapacity, as well as what kinds of decisions that person is allowed to make, and when. It can also include decisions about personal care and routine management of financial affairs, though major financial decisions such as the sale of real estate, incurring loans, etc. must be covered in a Power of Attorney agreement.

The Representation Agreement Act of B.C. requires that a medical professional determine whether a person has an RA in place before providing any medical services, emergencies excepted.

Anderson says the Act itself provides a standard set of instructions that applies to all British Columbians unless an RA is in place to override the Act’s provisions. Most people, he adds, are content to let the Act’s regulations determine what happens, but in some cases people want something different for their own reasons.

“For instance, a Jehovah’s Witness might have an RA drawn up to prevent blood transfusions, which is against their religion,” he says.

“More typically, an RA would be used to determine what happens when someone is on life support.”

In addition, people will have an RA drawn up if they don’t want the people on the standard list of representatives to have control of their life. The standard list starts with the person’s spouse, then the children, parents, and so forth.

The advantage of an RA, says Anderson, is that it takes the burden off of your family when it comes time to making such life and death decisions. In effect, you’re maintaining control of your life in spite of your situation.

For those who aren’t picky about who is calling the shots in the case of mental incapacity, the RA has a cousin, the Advance Directive (AD), which can be drawn up to cover specific medical situations only while leaving the general details for the Act and medical professionals to determine. They’re not used very often, but they’re available, says Anderson.

Anderson says it’s important for people to understand that the PoA and the RA are two different documents that can co-exist, but which relate to different aspects of a person’s life.

• For more information about Wills, Power of Attorney agreements, and Representation Agreements, contact a lawyer who specializes in the subject.