The Notary Group

The Notary Group

The Notary Group

We are members of the Society of Notaries Public of British Columbia. The Notary Group is the trade name for Janzen & Caisley Notary Corp., a Professional Notary Corporation. The information on this blog is just that – information – if you need legal advice, please contact us: info@thenotarygroup.ca, or www.thenotarygroup.ca.

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Personal Care: who gets to decide where you live when you can’t?

March 14, 2015 , , , ,

By Linda Caisley, CFP, Notary Public

Think your friends or family will just sort you out when you become unable to care for yourself?  Would you be surprised to learn that they might not even be able to make you brush your teeth unless you specifically appoint them?

In BC, we are all presumed capable of deciding what we want to do about our personal care. So you get to decide:

  • where you live, whether you work, what you eat or dress like

  • whether you get to participate in any social, educational, vocational (work) or other activities

  • who you connect with as friends and in your personal relationships

  • whether you drive a car, fish, or hunt, or have any other approvals you need to carry on with your life or you work

Note that we’re not talking about “health care” decisions here – that’s a whole other part of your life.  This article is strictly about “personal care”.

What happens when you can’t make these decisions for yourself? Or when the decisions you are making start to become questionable?

There are very few options:

  • you can appoint someone to make these personal care decisions for you in a representation agreement

  • a “designated agency” (usually your local health authority) can try and help you get some of the services you might need

  • a family member can go to court and ask to be appointed as your guardian (called a “Committee”)

  • the Public Guardian and Trustee may take steps to become your guardian (your “Committee”) if you have no family to do so, and you never appointed anyone as a representative

Unlike health care, you cannot leave instructions for others about the kinds of personal care you want. You can make an advance directive that tells others that you do not want CPR, or other life support (even if doing so means you die), but you cannot make an advance directive that tells others to stop feeding you, or stop giving you hydration to the point that it ends your life.

And that Power of Attorney you made? It’s important, but it only covers your financial affairs – it does not give anyone power over your personal care.

The simplest option (and the one that lets you control your destiny as much as possible) is to appoint someone as your representative under a Representation Agreement. This person you appoint – your representative – can make any of these personal care decisions for you. They don’t even have to completely take over for you – they can just help you make these decisions.

For example, if you have an illness or disease that progresses slowly, such as dementia, Alzheimer’s or Parkinson’s, there will be a time at the beginning of this diagnosis when you will continue making all of your decisions yourself. At some point, you may want someone to help you sort out things like where you should live, and when you should stop driving. Even later, you may simply want to hand over these decisions to your representative, so they can make them on your behalf.

It’s important to note that your representative can help you with any personal care you might need, but they cannot withdraw any personal care services which are necessary to preserve your life. In other words, your representative cannot starve you to death, or stop giving you hydration until you die of dehydration.

If you never made a representation agreement, then your options are very limited, and you may find yourself the result of an investigation by your health authority, or a court application.

You have two basic options for personal care, if you never made a representation agreement:

Designated Agency Assistance

A “designated agency” – usually your local health authority – will investigate what is happening in your life to determine whether you need support and help.

If the designated agency decides that you need help, it can:

  • refer you to various services in your community

  • decide whether you need help getting these services, and if so, actively help you get these services put in place

  • tell the Public Guardian and Trustee about your situation

Committeeship

If you are truly unable to manage yourself, your affairs, or both, then someone must be appointed as your “committee” – your guardian. This means a friend or family member must ask the court to have you declared incapable, and to have themselves appointed as your guardian. If you don’t have a friend or family member who will do this for you, the Public Guardian and Trustee can apply to be your committee.

This process can take anywhere from 6 weeks to 6 months, depending on who is fighting with whom in your life, and can cost anywhere from $3,000 to $20,000 (again, depending on how badly your family fights with each other over what to do with you).

Your friends and family simply do not have the legal authority to make these decisions for you unless you appointed them as a representative, or they go to court and have themselves appointed as your guardian or committee.

You can make a representation agreement yourself, or you can hire us to help you make one. Visit our website to find a notary near you to help you make a representation agreement.

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