Managing our own or a loved one’s health care requires personal fortitude, especially when the situation is unexpected…

My passion in my Notary practice is to help people with their personal planning that includes Powers of Attorneys, Representation Agreements, Advance Health Directives, and Wills.

In particular, my value to my clients is that I know from personal experience the power a Representation Agreement can play in each and every family.

Managing our own or a loved one’s health care requires personal fortitude, especially when the situation is unexpected and there is no option to hear from the loved one what he or she would want as care or health interventions.

A Representation Agreement is done pursuant to the Representation Agreement Act in British Columbia. A Representation Agreement authorizes someone to make health care and personal care decisions on your behalf when you can’t make your own decisions. The Representation Agreement Act section 1 defines “Personal Care.”

Under that law, people are presumed to have capacity to make their own decisions unless it’s obvious they don’t or are determined by diagnosis not to have capacity. A person with full capacity can
make an agreement, drawn up by a BC Notary or lawyer, where the person appoints one or more representatives to act on his or her behalf. Typically, representatives are close family members, but not always.

My 54-year-old brother is an example of a person suddenly having zero capacity to make health decisions about himself and the need to have someone else make decisions for him. He was found barely conscious by a friend just days before Christmas. At the hospital, he went into cardiac arrest and fell into a coma with multiple organ failure.

There are two types of Representation Agreements.

• A person with full capacity can make a section 9 Non-Standard Representation Agreement.
• A person with reduced capacity can make a section 7 Standard Representation Agreement.

Section 9 Representation Agreements

The section 9(1) Non-Standard Representation Agreement sets out what a Representative may be authorized to do.

Section 9(2)(a) states that unless expressly provided for in a Representation Agreement, a representative must not give or refuse consent on the adult’s behalf to any type of health care prescribed
under section 34(2)(f) of the Health Care (Consent) and Care Facility (Admission) Act.

In section 9(3), if a representative in a section 9 Representation Agreement is provided the power to give or refuse consent to health care for the adult, the representative may give or refuse consent to health care necessary to preserve life.

The basic scope of powers granted to a representative under a section 9 Representation Agreement includes making major health decisions about surgeries, resuscitation, life support, cancer treatments, laser treatments, kidney dialysis, and anything else deemed major by the regulating authority. Personal care decision-making about what you eat or wear, your driver’s licence,
your living companions, and your personal contacts is also part of a Representation Agreement.

Your representative must have the capability to act solely for you and not in his or her own interests. A Representation Agreement puts in place the people to act as your representative; that document is the catalyst for important conversations we all need to have with respect to our own future health care. If you are a representative, such decisions must be made with your personal
knowledge about what the person would choose and prefer.

At 51, I have had many upclose-and-personal experiences with health, death, and dying. Those events have given me much wisdom and the ability to connect with my clients as we create documents related to them and their health. We have realistic discussions about both unexpected or expected scenarios that can happen in any of our lives.

None of us has a crystal ball about what our health issues will be or how they will progress. Fast or slow, we truly don’t know. I learned that as a society, we are not well equipped to deal with difficult, sudden, or traumatic events regarding ourselves or a loved one.

Dad’s recent fall confirmed why we need to be prepared with a Representation Agreement and that we need to tell our family what we would want in case the proverbial bus hits us.

Mother’s slow decline to a place she would never have wanted to be with Alzheimer’s taught me to be patient and accepting and to focus on her quality of life in her medical care and day-to-day living. I also used Mom’s Representation Agreement as an advocacy tool for her at times when the system let her down.

My Dad’s Story 

This could be any family’s story. It was the first time I had to represent another person and make life and death decisions.

On a deep level, I knew something was wrong. I’d had a happy Sunday night with my two boys making gingerbread houses but, just after 10 pm, I couldn’t settle. My spirit took a 180 that made no sense to me at the time. I was agitated throughout the night. At 7:40 am on December 24, I got a phone call from my oldest brother telling me Dad had fallen down the stairs the night before and
landed on his head on the cement basement floor. He was rushed away in an ambulance and was not expected to live.

That call set in motion a flurry of activity, including hauling my boys out of bed, grabbing a few Christmas presents, and getting on the ferry to Vancouver and then making the difficult drive through snowy passes to the Okanagan Valley. I cried. I cried a lot. I never expected to see Dad alive again.

He lived another 12 days. Those days gave me the biggest insight into our medical system and what happens when our lives do an about-face and we’re thrown into a traumatic event where action is required on behalf of someone we love. Seeing Dad in the Penticton Hospital ICU for the first time, I knew he would never return to the active man I knew and that he would not survive his catastrophic injury.

Dad had no Representation Agreement so there was no designated person to act for him. And, as with many of his generation, he never talked openly about anything health-related. He certainly never spoke about death. He probably had never heard of a Representation Agreement.

Of course, by position in the family, Mom was the obvious person to make health decisions for Dad but her physical health was not great, making it difficult for her to get to the hospital, plus she  was in the early stages of cognitive decline.

Hierarchically, the decision-making fell to us four kids. But which one? I realized grief was a new experience for each of my brothers that profoundly impacted them to the core. Grief is a powerful emotion; we can never know how any one of us would be in a given situation. With such clarity, I saw the various stages of Elizabeth Kubler Ross’s grief identifiers in each of my brothers . . .
shock, denial, anger, and false hope.

I could see how grief was crippling them. It’s not to say they wouldn’t have made it through, but they may not have made crucial life-altering decisions in a timely manner. I also recognized I had the skills and experience necessary to make decisions about my dad and one would eventually be an end-of-life decision.

The only evidence I had about how Dad felt about death was what he said about a close friend, “It was a good thing the family pulled the plug on Donnie.” We had had a general discussion about how Donnie would not have wanted to be kept alive on life support. That was a crystal-clear memory for me because Dad never talked about his own death or anyone else’s for that matter. Ever.

Ultimately, my assessment of his condition, his prognosis, and my ability to think critically and manage Dad’s daily care made me the “go to” person for the medical staff; the decisions about Dad’s care fell to me as a temporary substitute decision-maker.

care in the ICU was excellent but, when he stabilized 4 days later, they moved him to a ward. I was his eyes and ears and voice. He could not speak for himself or ask for help as the people in the other beds could. I needed to protect him and preserve his dignity in a way that would allow him to pass from this world. In the end, I had the highest privilege of being with Dad when he died.

***

My own critical health issues 2 years ago forced me to face my fears about dying and took me to a deeper level of understanding the fears we all have. I learned that making a document while you’re severely stressed is not the best time to do it.

Those experiences allow me to pass forward some critical learning and the message that we all should have a Representation Agreement in place.

When a person does not have a Representation Agreement, under our laws a temporary substitute decision-maker can be put in place . . . either an adult appointed by the Court to be a committee of the person under the Patients Property Act or a temporary substitute decision-maker (TSDM) chosen by a health care provider or authorized by the Public Guardian and Trustee.

Temporary decision-makers can be immediate family, friends, neighbours, or any appointee designated or recommended from within the medical system, including the Public Guardian and Trustee. In my experience, that appointment will depend on the information available to health care providers charged with overseeing a patient regarding the natural support people in the person’s life and whether those individuals are available, known, capable, and willing to step up to act.

People can be blinded so much by grief, they cannot make a timely decision. Families can disagree on treatment because old resentments get in the way of their acting responsibly for the adult needing decisions or ongoing care.

Further, the common blended-family scenario presents the additional dimension of spouse vs. adult children making decisions. I know you can muddle through a health crisis, but there is a strong vulnerability where the adult needing care might not end up with the right or the most trusted person in place to make decisions. A Representation Agreement allows you to appoint the appropriate individual.

Note: If there is no Representation Agreement but there is a legally valid Advance Health Care Directive in place that gives or refuses consent to the treatment or health care that is being proposed by the health care provider, the health care provider must follow the adult’s direction as set out in the Advance Health Care Directive.

As a BC Notary, I am trained in the laws surrounding Representation Agreements and Advance Health Care Directives. In part of my process for preparing the documents, I talk in-depth with clients about health care, current health risks, personal values, and how to choose their representative. I inform on the laws pertaining to their health documents. I weave my stories where appropriate to illustrate why appointing legal health representatives is important and how the documents work for the clients.

My advice? All adults should make an appointment to get a Representation Agreement drawn up . . . to prepare while there is no health crisis. That gives the adult and the family the gift of time to think through and plan the routes around health care.

The best scenario is that you have the Representation Agreement document prepared and you never need it. The likelihood is that you will need it at least once. And you and your family will be very glad you have it.

Beverly Carter is a BC Notary practising in Victoria. 

 

Just think about a short-term health scenario where bills could not be paid for a few months—  or worse, a year.

Notaries play an important role in the wealth management process.

We are generally one part of a professional team that often includes an investment or financial adviser, tax practitioner, and/or accountant that clearly understand the financial objectives of our clients’ estates.

Each member of the team provides his or her respective expertise and advice on wealth management with respect to budgeting and cash flow, tax planning strategies, pension planning, business planning, retirement income, and estate planning. BC Notaries are essential to meeting wealth management objectives by preparing core personal-planning documents including Wills, Powers of Attorney, and Representation Agreements.

In BC we have the Representation Agreement Act and Wills, Estates and Succession Act. In the context of those laws, BC Notaries can offer non-contentious legal advice and provide options that may impact clients and their wealth management.

Most people think of the Will as the main estate-planning tool. While that is true, the Will deals with wealth and finances only after a person dies. I believe as much planning should go into what happens to the wealth and money while a person is alive.

• While the Will can ensure your family is cared for if (and when) something happens to you and defines where your money goes, it does not deal with periods of health, personal down time, or long- term illness while you are alive.

• A Power of Attorney document is prepared pursuant to the Power of Attorney Act1 and defines who will manage your wealth and debts, short term or long

Just think about a short-term health scenario where bills could not be paid for a few months—or worse, a year.

• Realistically, personal credit scores would be negatively
• Would your mortgage renewal interest rate go higher?
• If your health event was longer, permanent, and degenerative, who would cancel your cell phone account, re-direct your mail, or file annual income taxes? A Power of Attorney properly prepared

and implemented is a powerful, helpful, and protective tool for your wealth management.

The corollary to the Power of Attorney is appointing a health representative2  in a Representation Agreement in accordance with the Representation Agreement Act3  to ensure someone can make health decisions for you when you can’t.

Health problems can have financial consequences, but a Power of Attorney done in British Columbia cannot give anyone the power to make health decisions for you. Your health representative may be called upon to manage your care for a long-term illness.

In such a scenario, mobility aids, medications, and accommodation might be necessary . . . and all have a dollar value attached.

The government certainly doesn’t provide those things for free so having a Power of Attorney in place is the tool to help the necessary expenses get paid from your wealth and finances.

At the same time, the trusted individual appointed by your Representation Agreement, a representtive who knows you intimately, would make health decisions on your behalf and work collaboratively with the appointed Power of Attorney to manage the financial impact of your evolving health care needs.

The Power of Attorney and Representation Agreements go hand in hand and are important pillars o f managing wealth.

The preparation of those documents needs information. I often tell my clients that their personal documents may be relatively straight forward, but their lives are not. Family members, family dynamics, marital status (married, widowed, common law), or blended family backgrounds factor in the decision-making process.

And when it comes to a discussion of the “golden years,” many clients give a friendly eyeroll and chuckle over their current aches and pains. None of us has a crystal ball regarding our maturing and aging process.

In Canada, we are knee-deep in a “Silver Tsunami”4 —a demographic challenge to our society where substantial numbers of people are getting old. In particular, that impacts the government health-care resources that may directly affect our personal finances and ability to self-manage.

We rely on statistics to give us a general sense of things like life expectancy rates and so on and so forth because they factor into the preparation of personal planning documents.

For example, when I talk with clients who are 30 years old vs. 90, the discussions and realties of life contexts are typically quite different. Not one of us knows until something happens to us what our particular trajectory will be or how it will be managed exactly . . . or for how long.

According to The Alzheimer Society of B.C., there are currently about 70,000 people living with dementia in our province5  and that number is anticipated to grow. My own mother had Alzheimer’s Disease; as her Power of Attorney person and the representative named in her Representation Agreement, I had many active roles to support her final life process for more than 9 years.

BC Notaries prepare our clients’ personal-planning documents for the inevitable or unexpected events of life. Wisdom defines that strategically our Wills, Powers of Attorney, and Representation Agreements generally should be viewed as 5-to- 10-year documents to be reviewed at reasonable intervals and updated in light of changed circumstances.

Whether starting with a single new document or updating older documents, our most important part of a process with clients is to gather information germane to their finances, debts, and overall wealth management. We focus on understanding and confirming details related to a client’s wealth and health and well-being objectives.

Ultimately, as a BC Notary, I am an important and trusted professional on the wealth management team.

We make the documents that support our client’s best personal health and wealth management plan to reflect his or her wishes, objectives, and legal directions.

Beverly Carter is a Notary Public with a practice in Victoria, BC, and a passionate interest in elder law.

 

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1. http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section10
2. http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section5
3. http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01
4. https://en.wikipedia.org/wiki/The_Silver_ Tsunami
5. https://alzheimer.ca/en/bc/Research/ Research-in-BC

BC Notary or Lawyer?

This is perhaps one of the most frequent questions come to mind when we have a need for real estates. Many people who come from other provinces or countries didn’t know that in British Columbia you can certainly hire a Notary to do a real estate transaction. Even BC residents get confused.

In order to answer this question, let’s explore the similarities and differences between a Notary and a Lawyer.

The Similarities:

Both BC Notaries and lawyers are fully legitimate to help you with real estate transactions such as buying or selling a house and mortgages.

Both are experts in the areas that we choose to practice. If we act for you in a residential real estate transaction, for example; our experience will help us to identify issues and deal with them before they become problems. In fact, Notaries do 70% of all residential real estate transactions in BC. We are highly trained and experienced in this area of law.

The Differences:

In education:

• BC Notaries now complete both an undergraduate degree and a Master of Arts in Applied Legal Studies; as well as writing statutory exams administered by provincially appointed examiners.  They also must be accepted into The Society of Notaries Public of British Columbia.  BC Notaries have mandatory continuing education in the areas where we practice. BC Notaries are very well trained in the areas we practice.
• Lawyers need both an undergraduate degree and a law degree. They also must pass a provincial examination and article at a law firm for a year before they practice. Lawyers start our as generalists, then typically get trained to specialize in i.e. criminal law, tax law, family law.

In legal matters:

• BC Notaries do not represent clients in court and do not get involved in litigation. Notary work is restricted on non-contentious matters in which all parties involved have already reached an agreement, like in real estate transfers, mortgages and estate planning.
• Lawyers may represent clients in court when there is a litigation. However the same lawyer who did your real estate transaction cannot represent you in court due to conflict of interest.

In services:

	BC Notaries	BC Lawyers
Certified true copy	X	X
Affidavits	X	X
Statutory declarations	X	X
Travel consent letters	X	X
“Still alive” letters/certificates	X	X
Land Title documents from other provinces	X	X
Standard Wills	X	X
Representation Agreements	X	X
Executor appointments	X	X
Powers of Attorney	X	X
Residential conveyancing	X	X
Trust Wills		X
Separation agreements		X
Uncontested divorces		X
Prenuptial or cohabitation agreements		X
Incorporating a company		X
Annual corporate records		X
Probate		X

 

Still not sure which one you need?

All BC Notaries receive ongoing training in matters of real estate, wills and estate planning; as well as notarizations for use in Canada and around the world.

In British Columbia, all lawyers are also “notaries public” which means they can legally act in the same practice areas as BC Notaries. Some lawyers choose to practice in the traditional areas of BC Notaries.

Whether you choose a BC Notary or a lawyer, it is always essential to choose someone who specializes and experiences in the area that you need.

Listen to advice of friends, colleagues and ask for a referral. Check out the reviews online. Find someone you are comfortable with and feel that you can get to know, like and trust them.

Get in touch and we will be happy to answer any further questions.

I just finished our fall Notary conference. As I wait for my plane to return home, it’s good to take the time to reflect on the past couple days.

Our professional body, The Society of Notaries Public of BC, comes together twice a year to learn and keep up to date with current practices, legal precedents, judge’s decisions on matters that relate to our areas of law, and to engage in meaningful discussions with our notary colleagues. I’m always impressed with the information sharing, depth of knowledge, and breadth of experience found around any given table where I sit. And I wish I had more opportunities to meet with my colleagues from around the province.

This year’s conference was extra special in that we spun off the trade part of our professional body which is now called the BC Notaries Association. We held our election & inducted our first full board of directors, several whom were in my Masters degree & professional training cohort. The mandate of the association is to advocate, continually educate, and promote our notary services and profession.

It’s an exciting time to be a notary as generally first world countries are seeking to make legal services more accessible to citizens. And, BC is no different. BC Notaries have developed a trusted tradition based on grassroots delivery of legal services throughout British Columbia which forms an excellent foundation to build additional services. Our clients regularly walk in expecting us to be able to assist in trusts in Wills, standard court probate, cohabitation agreements, simple family law matters, business corporation setup and other similar services. They are disappointed when we cannot meet their needs.  We look forward to working on gaining these additional services and continuing to provide excellence in legal services to the public in British Columbia.

Beverly Carter

Q. Charities as Beneficiaries

There are two charities named as beneficiaries — should we be concerned?

A. Charitable Organizations can be Professional Beneficiaries

Modern corporate governance require charities to no longer be simply patient and grateful to receive a bequest. Many charities are now much more diligent in their review of executor performance, and less likely to forgive any errors that impact the financial value of their bequest. Certain prominent charities describe themselves as “professional beneficiaries”; they may try to impose strict rules upon the administration of the estate. This may include litigation against the executor if the organization believes that such action will improve the financial result.

To begin making your Will go to the Will Questionnare.