Can the court terminate a Representation Agreement?

It is popular these days for people to make Representation Agreements. Legislative changes in recent years have made it easier for adults to plan their end-of-life treatment, and more of us are taking advantage.

The latest legislative changes, in 2011, made the Power of Attorney the only planning document for managing a person’s financial affairs and the Representation Agreement (“RA”) the main planning document for managing a person’s health care. (There is also a document known as an Advance Directive, but it is not used as often.)

A person making an RA appoints one or more person(s) to represent them in their health care management. The range of decision-making powers given to their representative tends to be understandably broad.

There is also, typically, a “living Will” clause in the document, where the person states, generally speaking, that if they are being kept alive by machines and medical opinion is that recovery is unlikely, the machine(s) should be “unplugged.”

If everyone in the family gets along, it can all be simple.

However, a recent case shows the complexity when family differences exist.

Facts
Reasons for judgement were released in February in the case Re Clay. The adult in question made an RA in 2004.

He appointed his wife as representative, with his two daughters as alternates. The agreement was to become effective when the adult father became incapacitated.

At the relevant time, in 2014, his wife was in a care facility, thus unable to act. His two daughters then assumed authority.

They persuaded their father to move to a care facility, which he did. But not long after, dissatisfied with the facility, he returned home with the help of his (adopted) son.

The daughters launched action, seeking a Court Order declaring their father unable to manage both his person and his financial affairs. Their father sought his own Lawyer.

They then set a mediation, where they agreed to appoint a Trust company as financial Committee.

That agreement was used in the subsequent Court hearing, where the Court made the Order that the father was incapacitated and unable to manage his financial affairs.

However, the question of a Committee over the person was not concluded. That application was adjourned.

It was now unclear if the 2004 RA still applied. So, the Trust company returned to Court, seeking directions as to whether the RA indeed still applied (so that the Trust company could know with whom it had to deal).

The question for the Court was if the declaration that the father was incapacitated rendered the RA terminated.

Decision
In a careful, skillful analysis, the Court held that the earlier declaration of incapacity of the father did terminate the RA.

Therefore, if the daughters wanted to manage their father’s health care, they would need to bring on an application for that Order, because with the termination of the RA, no person was left in the “management” position.

I expect that there will be another Court application.

Summary
Incapacity planning is becoming more controversial and popular. Recent and upcoming changes to the law will facilitate physician-assisted end-of-life planning.

Canadians have thus far reacted positively, it would seem. With Representation Agreements, a person may express their preferences with respect to all their health care treatment.

But the state of the family will dictate how they plan. If family members are not on good terms, they may choose a representative outside the family, or even not plan at all.

Leaving it up to a Court Order may prove expensive, but there may be no other choice, unless a person can find a workable plan using good advice, which will likely involve fewer family members.

This ad ran in the Richmond News on February 26, 2016.