Most people are familiar with the notion of having a Will drawn up to provide guidance and direction for how their estate is to be handled upon death. Having a Will is considered part of prudent estate planning. At one time that would have been sufficient. Increasingly, however, we are experiencing a need to plan for a time when we or a loved one is no longer able to make decisions while still alive.
This is called incapacity planning and it too is considered to be an essential part of estate planning. As a family caregiver you will want to ensure that the person you are caring for has taken the time to consider these issues.
Not being able to make decisions on legal, medical or financial matters, can occur for a variety of reasons such as illness (e.g., Alzheimer’s or stroke), mental illness (e.g., schizophrenia), accidents causing a brain injury (e.g., a serious fall or car accident), or long-term abuse of alcohol or drugs. This is often referred to as mental incapacity. Regardless of the cause, mental incompetence means that a person is no longer legally able to make decisions regarding the management of his/her affairs - for example, signing a contract, selling a house, taking money out of the bank, or providing informed consent for a medical procedure.
British Columbia introduced new adult guardianship laws in 2000. After considerable debate and modifications to the laws, most lawyers consider the two best options for incapacity planning are:
If a person has become incapable of managing his/her financial or health care affairs, and no attorney has been appointed or is willing or able to act, the Public Guardian and Trustee’s Office or a court appointed committee may be needed. If no representative has been appointed to make medical decisions (or is willing or able to act), the attending doctor must appoint a temporary substitute decision-maker if one is available. If not, the Public Guardian and Trustee may again need to step in. The PGT may become involved if there is a suspicion that someone is taking financial advantage of a person who is not mentally competent.
1 Portions were adapted from articles written for the Family Caregivers Network Society by Ruth Magnusson, Barrister and Solicitor, Straith and Company, Victoria, BC.