When most people think of estate planning, they think of getting a Will drawn up – which is a great start! But, even in the most basic, straight-forward situations, a comprehensive estate plan goes beyond just a Will. In addition to planning for death, it is extremely important to plan for incapacity. The main tools for incapacity planning are an ‘enduring power of attorney’ and a ‘representation agreement’.
Enduring Power of Attorney
An Enduring Power of Attorney allows you to make arrangements for your legal and financial affairs in the event you are incapacitated or otherwise incapable of managing your affairs yourself (for example, due to illness, injury, or travel).
If you do not have an Enduring Power of Attorney and you become incapable of managing your affairs, the Public Guardian and Trustee would look after your affairs unless someone else applies to the Court and is appointed as your "Committee". The process of being appointed as a Committee gets expensive fast—especially if there are disagreements among your loved ones about who should be appointed. In addition, because it is a formal court-driven process, it tends to take much longer than most people expect.
Choosing an Attorney
Your attorney will have the power to handle all of your financial and legal affairs, so it is important that the attorney you choose be someone that you can trust and someone who is capable of handling these types of decisions. Another consideration is where your chosen attorney lives.
Many people appoint one person (for example, a spouse) to be their primary attorney and a second person (for example, an adult child, a sibling, or a close friend) to be their alternate attorney.
It is also possible to appoint two or more attorneys jointly. You can choose whether your attorneys must act together or if they may act separately. Keep in mind that joint attorneys who are required to act together must make all decisions unanimously and must all sign any necessary paperwork. This can sometimes cause delays and inconvenience.
Representation Agreement
A Representation Agreement allows you to make arrangements for your health care and personal care matters in the event you are incapacitated or otherwise incapable of managing your affairs. You can appoint someone to help you manage your affairs and, if necessary, to make decisions on your behalf in case of illness, injury, or disability.
If you do not have a Representation Agreement, health care decisions would be made according to the Health Care (Consent) and Care Facility (Admission) Act. The Act allows health care providers to provide care without consent in certain emergency situations. In other cases, the Act requires that health care providers obtain consent from certain qualified individuals called "temporary substitute decision-makers" (spouse, child, parent, sibling, etc.).
However, there are some limitations on temporary substitute decision makers' authority. For example, they can only refuse consent for life support if the majority of the medical team agrees it is medically appropriate. Also, a temporary substitute decision maker only has authority for a period of 21 days. Lastly, a temporary substitute decision maker does not have legal authority to make personal care decisions, such as decisions relating to living arrangements, diet, grooming, personal safety, and support services.
For your personal care, or if there are disputes about your health care, the Public Guardian and Trustee would look after your personal and health care decisions unless someone else applies to the Court and is appointed as your "Committee". This can be an extremely time-consuming and expensive process for your loved ones who are left to make these arrangements.
Choosing a Representative
Your representative will have the power to help you manage your health care and personal care matters and, if necessary, to make decisions on your behalf if you’re not able to manage your affairs yourself.
Many people appoint one person (for example, a spouse) to be their primary representative and a second person (for example, an adult child, a sibling, or a close friend) to be their alternate representative.
Many people choose the same people to be their representative and their attorney, but the types of decisions that each one will be making are quite different, so it is not a bad idea to consider the personalities of the people you have in mind. Decisions about money are one thing; decisions about when to pull the plug are a whole other ball game.
Final Thoughts
Incapacity planning doesn't have to be complicated. For most people, the documents set out above will provide an excellent starting point. You can always build on your plan if your situation changes and additional documents are needed. But the point is to get started on that plan now, because not only are the alternatives are costly and time-consuming, they can leave your loved ones with some very tough decisions to make without knowing what your wishes are.