A useful legal document sometimes used in conjunction with putting assets in joint names is a bare trust. This brief document simply states that although the asset is in joint names, the elderly relative does not intend that his or her child will own the property after the parent’s death. The document specifically states that the child’s name was only put on the asset for convenience. It is not a good idea to try to draft a trust like this on your own; it is better to have that done by a lawyer. It can be done quickly and inexpensively by a lawyer.
5. Health Care Directive
This document goes by various names across Canada, such as Health Care Directive, Advance Health Care Directive, Advance Directive, Personal Directive, and Power of Attorney for Personal Care. It will be referred to as a Health Care Directive in this book. Though it goes by various names, it has one main purpose: it names an individual to act as a spokesperson and decision maker for an elderly person who is unable to make or communicate his or her own decisions about personal and health matters.
The type of decisions that can be made by a person (called an agent in this book) appointed under a Health Care Directive roughly corresponds with the type of decisions that would be made by a court-appointed guardian. This would include medical decisions about surgery, tests, treatments, and medications. It would also include other personal decisions such as where and how the elderly relative will live. If a valid Health Care Directive is in place, it is highly unlikely that anyone will need to be appointed by the court as guardian.
This is not a document that you can impose on your elderly relative by applying to the court for an order. The courts are not involved at all in creating the Health Care Directive. The Health Care Directive is signed by the elderly relative and it is an expression of his or her wishes. By signing this kind of document, the elderly relative has the opportunity to choose a spokesperson for himself or herself as opposed to having the choice imposed on him or her by other people. The elderly person also gets to express his or her thoughts about whether or not he or she wishes to donate organs after death or be kept alive artificially, if in a vegetative state.
Estate planning lawyers encourage their clients to sign this very useful document well in advance of any mental or physical problems arising. That way, the document is ready to be used when it is needed and the family need not go to the expense, delay, stress, and possible disputes of applying to the court to appoint a guardian. However, not everyone has signed a Health Care Directive, either because they had no opportunity to do so or because they chose not to do so. It is important to note that if your elderly relative has already lost his or her mental ability to understand legal documents, it may be too late for him or her to sign a Health Care Directive.
If you are not sure whether your relative has capacity, you should discuss this with his or her regular doctor. Capacity is a complex concept. A person who has lost capacity to do one thing, such as deal with money, may not necessarily have lost capacity with respect to other things.
If your elderly relative still does have the mental capacity to understand the nature of a Health Care Directive and understand what it would mean to sign one, this might be a viable alternative to involving the courts. It is beyond the scope of this book to give instructions on how the document is to be prepared. You may assist your elderly relative in seeing a lawyer to have this document prepared, or you may look for a self-help book that gives instructions on how to prepare a Health Care Directive. For more information see the Power of Attorney Kit, another book published by Self-Counsel Press.
In the event that your elderly relative does already have a Health Care Directive in place, you should read the document carefully to determine whether it can be used in your situation instead of applying to the court for a guardian. The document will tell you, first of all, who the relative has chosen as his or her spokesperson. It might not be a person you would have chosen but you will have to live with that choice. The document can only be used by the person named in it. It will also give some guidance as to the health care preferred by the relative. If you doubt the document’s validity, you might consult an estate-planning lawyer to review the Health Care Directive. Assuming that the document is valid, it can be presented to the hospital or other facility in which the relative is to be treated or admitted, without any court involvement whatsoever.
6. Representation Agreements
In British Columbia, Saskatchewan, and the Yukon, it is possible to make written agreements known as Representation Agreements between a dependent adult and one or more trusted friends or relatives who are willing to assist the dependent adult with decision making.
Representation Agreements are different from Health Care Directives in one very important way. A Health Care Directive simply appoints a decision maker who is not the dependent adult. The Representation Agreement appoints someone to make decisions with the dependent adult, not for the dependent adult. In both kinds of documents, the person who helps with decisions is appointed by the dependent adult, but with the Representation Agreement the dependent adult can choose to keep some decision-making ability for himself or herself.
It is not the purpose of this book to give specific instructions on how these agreements are to be made. If, after reading these sections, you believe that this alternative would be helpful to you and your elderly relative, you can either see a lawyer to have the documents prepared or you may seek out a self-help book that specifically addresses the preparation of Representation Agreements.
6.1 Agreements in British Columbia
Representation Agreements in British Columbia are versatile documents that can either authorize a person to help the dependent adult make decisions or authorize a person (known as the representative) to make decisions on his or her own on behalf of the dependent adult. This is the choice of the dependent adult at the time he or she signs the document. The dependent adult has to expressly state in the document what he or she wants the role of the representative to be.
The dependent adult maintains a great deal of control over the document. He or she may give the representative power to make personal- and health-care decisions normally associated with guardianship or to make financial decisions normally associated with trusteeship or both. The dependent adult will identify the areas in which he or she needs assistance. This person can give different people the authority to make different decisions.
The dependent adult may appoint the following as his or her representative:
• The Public Guardian and Trustee.
• A credit union or trust company. This can only be done as long as the decisions made by the credit union or trust company are strictly financial decisions and not personal- or health-related decisions.
• An individual person. If the dependent person appoints an individual, the dependent adult must also appoint a monitor unless the individual appointed was a spouse, or at least two individuals are appointed who must act jointly. The monitor’s job is to ensure that the representative is acting honestly, diligently, and prudently, and is consulting with the dependent adult where possible and is not acting outside his or her authority.
As with the other alternatives to court-appointed guardianship and trusteeship that are discussed in this chapter, the Representation Agreement allows a dependent adult to maintain some control over his or her own affairs. Having an agreement in place is much less intrusive than a court order. The Representation Act of British Columbia specifically says that the law was put into place to avoid the need for court applications to appoint guardians and trustees.
6.2 Co-Decision-Making in Saskatchewan
