Representation Agreements and End of Life Considerations

Representation Agreements and End of Life Considerations

On February 6, 2015, the Supreme Court of Canada unanimously held in Carter v. Canada (Attorney General) that the current Criminal Code provisions for assisted suicide were unconstitutional. The Court gave governments 12 months to prepare any new law on physician-assisted dying. That legislative process is in the works.

There is an ongoing debate in Canada respecting this issue, but the one thing everyone agrees upon is that end-of-life care and comfort is paramount for the patient. Respecting a patient’s views and perspective, and ensuring their voice is heard at a time when they are ill and perhaps cannot speak for themselves, has always been an important consideration. 

Preparing a ‘Living Will’ used to be a common practice. However, this document is not legally enforceable in BC and does not allow for any medical advances between the time of its creation and the time it is used for a patient. Decisions set out in a Living Will are not made based on the most recent available information, but are rather made far in advance of any medical emergency. Things may have changed in the meantime – remember, even pacemakers were once considered ‘experimental surgery’. Further, a Living Will may express wishes for a patient’s care, but often does not authorize a specific individual to make substitute health care decisions for the patient.

To remedy these issues, BC legislated the Representation Agreement Act, allowing for a legally binding contract between an Adult and his or her appointed representative. This document allows for the representative to make health care decisions for an Adult if they are incapacitated, ill or facing end-of-life decisions. These decisions are made by a specifically appointed representative and allow for that person to make decisions, or help make decisions, based on the most recent and up to date information and technology.

More than one representative may be appointed in your Representation Agreement, and alternative representatives may also be named.

It is also important to discuss with your representative, and other family members, what your care wishes are during an illness or when you face end-of-life decisions. This is called an Advanced Care Plan. Your representative can use the information discussed while making an Advanced Care Plan to make decisions in your best interest and for your comfort, should you not be able to speak for yourself. The BC Ministry of Health has provided a guide free of charge for this purpose. It can be found here.

If you would like advice or for more information regarding preparing a Representation Agreement please contact Chahal Priddle LLP at 250-372-3233 to set up an appointment today.