Planning for unexpected loss of capacity and end of life instructions is important at the best of times. However, due to the effect of severe cases of COVID-19 and the rapidity of onset, it is now more important than ever to have your affairs, and instructions, in place today.
One of the most useful tools for having your wishes fulfilled upon losing the ability to communicate is what is called a representation agreement. A representation agreement is a document used either for supported or substituted decision making for health care and personal care matters and will allow for your representative to refuse consent for specific kinds of health care, including life-supporting care or treatment such as ventilation. Representation agreements become effective on the date they are executed or on the occurrence of a future event.
Enduring Power of Attorney
Another useful estate planning tool that the lawyers at Hawthorne Piggott and Company can utilize on your behalf is an enduring power of attorney. By granting your friend, loved one, or trusted advisor, an enduring power of attorney, you will be allowing that individual to: make decisions on behalf of yourself, do anything that you may lawfully do by an agent, or limit their powers to specific powers of attorney, in relation to your financial affairs. Enduring powers of attorney become effective on the latest of:
- the date on which the enduring power of attorney has been signed by both the individual granting the enduring power of attorney and the attorney;
- the date stated in the enduring power of attorney as being its effective date; and
- the date an event described in the enduring power of attorney as bringing the power of attorney into effect is confirmed to have occurred.
As enduring power of attorneys deal with financial affairs, they may appear to be less necessary than representation agreements during the ongoing COVID-19 pandemic. However, the granting of an enduring power of attorney requires that the grantor understand the nature and consequences of the enduring power of attorney. Normally, in scenarios where an individual lacks this understanding, an application can be made to the court to appoint a committee (a committee will have all the rights, privileges and powers with regard to the estate of the individual as if the individual was of sound mind and as such, be able to assist in managing their finances). Unfortunately, due to the closure of the courts on March 19, 2020, applications to the court will not be heard unless they are deemed to be urgent matters (for a discussion of what an urgent matter is, please review our COVID-19 Family or Civil Litigation posting). As such, it is now more important than ever to have the appropriate legal documents prepared for the management of your finances prior to losing the ability to create an enduring power of attorney.
As always, having a will in place is one of the most important steps you can take towards protecting your interests and wishes after your passing (for more information on Wills generally, please visit our Wills and Estates page). One of the requirements of creating a valid will in British Columbia is the witnessing, in person, of the will by two individuals. Due to the COVID-19 pandemic, and the associated national attempt to avoid unnecessary personal interaction, some individuals are finding themselves in the difficult situation of choosing between attending a law firm for the witnessing or their wills, or putting off the completion of their wills and the associated management of their end-of-life affairs. As a solution on April 15, 2020, the Government of Saskatchewan released an amendment to their will witnessing requirements specifying that wills in Saskatchewan may be witnessed remotely using electronic means during the ongoing public emergency caused by the COVID-19 pandemic. Although the Government of British Columbia has yet to enact a similar amendment to our wills witnessing requirements, we will continue to the monitor the situation to provide you with the most up to date advice.