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Always Be Prepared: Essentials of Incapacity Planning

    Ensure your voice is heard even during incapacity by preparing the right documents tailored to your circumstances

    Incapacity Planning refers to the steps you can take to designate others to help you if you become incapacitated and unable to help yourself.  There are certain documents that can be created that serve different purposes and can be customized to meet your own particular circumstances and wishes.

    Power of Attorney

    A Power of Attorney (POA) allows you to appoint one or more persons to manage your financial and legal affairs.

    An ‘enduring’ POA is one that is prepared while you are capable, it takes effect when signed, and continues to be effective even if you become incapable.  There are some cautions to consider in preparing an enduring POA, most importantly that the person you appoint has the power from the time the document is signed and so you need to be confident that they will act in your best interests now and in the future.

    A ‘springing’ POA is prepared while you are capable but meant to take effect only if you become incapable.  One challenge with this type of POA is that there can be uncertainty about when a person has become incapable to the point that the POA should be activated.

    A POA can be general or specific, meaning it can give broad powers to make all financial and legal decisions you could make yourself, or it can be limited to powers over only certain types of actions/property or only be effective within a specified time period.

    Representation Agreement

    A Representation Agreement allows you to appoint one or more individuals to make health care and personal care decisions for you.  Health care decisions can be about major or minor treatment issues; personal care decisions can be about where you live, socialize, and other similar matters.

    A Representation Agreement does not typically allocate financial or legal authority to the representative (except a limited ability to give authority over routine financial matters in certain circumstances.)

    If you do not have a Representation Agreement or an Advance Directive (see below) and you are unable to give directions, caregivers will typically seek direction from the following individuals on your behalf:

    • Emergency situation – a near relative or a close friend who is accessible & available at the time;
      • Non-emergency situation – the decision-maker is chosen according to a priority list (set out in legislation), starting from spouse, then child, and down through other family relationships, unless the person with highest priority is not capable or has some dispute or estrangement from the person requiring care.

    Advance Directive

    An Advance Directive allows you give instructions that are meant to be directly binding on health care providers, to give or refuse consent to treatment and to make end-of-life decisions.  These can be useful if you have definitive views about the kinds of treatment and assistance you would want. 

    Health care providers are expected to follow the instructions in an Advance Directive.  (However, they may still err on the side of caution and continue treatment where there is uncertainty or a dispute.)

    The Advance Directive can be used in conjunction with a Representation Agreement, as an expression of your wishes that your Representative should follow in making decisions for you.  It can also be an independent document that allows a health care provider to act according to its terms, without seeking direction from anyone else on your behalf.

    Nomination of Committee

    A ‘Committee’ (essentially a guardian) can be appointed for you by the Court if you become incapable.  Typically, these committeeship orders are made because someone (often a family member) is concerned that you need assistance and seeks an order so that they can assist.  A court order for committeeship can give the appointed committee the authority to manage your financial and legal matters, your health and personal care matters, or both.

    There can be more than one person appointed as Committee – for example, it may make the most sense to have different people managing your financial affairs and your personal affairs. 

    By preparing a Nomination of Committee, you are making clear your choice about who you would want that person or persons to be.  A Court will follow your direction unless there is a good and sufficient reason for appointing another person(s).

    If you have an enduring Power of Attorney (for your financial/legal affairs) or a Representation Agreement (for your health/personal affairs) or both, if they are validly executed and still operate in your best interests, there may not be any need for anyone to seek a committeeship from the Court. 

    Always Be Prepared

    Incapacity Planning follows the Boy Scout rule…  Always Be Prepared.

    By preparing the right Incapacity Planning documents for your circumstances, you will have the comfort of knowing that your voice can still be heard even if it has been muted by illness or accident and you need someone to assist you temporarily or on a long-term basis.

    * This information is for general illustration only and is not legal advice.