Legal Matters - How to get the help you need
WHY DO YOU NEED TO ARRANGE LEGAL AUTHORIZATIONS?
Individuals and families may face legal challenges during their illness, such as, who is designated to speak for you if you are too ill and who is designated to manage your medical and financial decisions. It is very important that your family, medical and financial professionals are advised of who your legally authorized representative/s will be if you cannot represent yourself due to illness. It is also very important that you seek legal advice at an early stage to make appropriate arrangements to alleviate yourself and loved ones of these concerns. This process does not have to be daunting. A lawyer with expertise in this area will be able to walk you through the issues and create a plan that will meet the needs of your particular situation.
Legal Tools to Consider
The following is a list and explanation of several documents that you may want to consider from a legal perspective. The documents can help address and reduce the decision-making stress for you and your family.
The purpose of this section is to provide:
- an outline of the legal options that may be helpful to you when facing a cancer diagnosis.
- a summary sheet for gathering personal information to help you and your advisors in the event you need legal tools during your illness if you are not able to represent yourself.
Consider meeting with your professional advisor to see if your needs have changed in any way and if the documents need to be updated.
1. Power of Attorney
A Power of Attorney is a legal document in which you appoint another individual – or individuals – to act on your behalf to deal with your legal and financial affairs. The Power of Attorney document is only in effect while you are still alive. In the event you pass away – your Will then deals with the administration of your Estate. Your Power of Attorney can be written so that:
- it is effective immediately;
- it is in effect for a specific period of time or for a specific transaction; or
- it comes into effect in the event you lose your mental capacity.
Essentially the Power of Attorney appoints someone to step into your shoes and deal with legal and financial matters on your behalf. This individual is referred to as your “Attorney”. This is not to be confused with your lawyer. The Attorney in your Power of Attorney does not have to be a lawyer. Your Attorney is typically your spouse or a trusted family member or friend. As an example, your Power of Attorney can be used to allow someone to do your banking or pay your monthly bills.
It is paramount you have the utmost confidence that the individual you appoint as your Attorney will deal with these legal and financial matters in your best interests.
Your Attorney does not necessarily have to be the same person as your Executor.
Your Power of Attorney does not grant your Attorney the right to make health decisions on your behalf.
2. Representation Agreement
A Representation Agreement is a legal document in which you appoint an individual – or individuals – to act on your behalf to make decisions regarding:
- your personal care – including the right to place you in assisted living; and/or
- your health care – including the right to consent to or refuse consent to medical care of different types.
Usually, your Representation Agreement is written such that it will grant your Representative the right to make decisions regarding both your personal and health care.
The advantage of a Representation Agreement is that it allows you to select the person or persons you want to make these decisions for you. Your Representative does not necessarily have to be the same person as either your Executor or Attorney. Further, you can specifically outline certain types of care that you wish to receive and others that you do not wish to receive. As an example, you can stipulate if you do not want to be resuscitated in certain circumstances.
The Representation Agreement, like a Power of Attorney, can be written such that it survives any subsequent mental incapacity on your part. This is very important in the event there is a possibility that your disease might affect your mental capacity.
3. Advance Directive
An Advance Directive is a legal document in which you outline your instructions as to accepting or refusing consent to certain types of health care. This document operates independently of any third party. You are not appointing someone else to make decisions for you – you are providing your healthcare provider with specific instructions as to what types of care you consent to and others that you wish to refuse. The advantage of the Advance Directive is that with the document in hand, your healthcare provider can proceed without the need to consult with someone else on your behalf. The disadvantage is that circumstances can change over time and you might decide that your wishes have changed. If this happens you would then have to amend your Advance Directive specifically. This may be difficult to do in a timely manner. With your Representation Agreement, the situation is a bit more fluid. You could speak to your Representative and advise them directly as to the changes you have decided upon. The Representation Agreement itself might not have to be formally changed.
A Will is a formal legal document in which you set out what you want to happen with your assets after your death. Your Will appoints an individual to act on behalf of your estate upon your death. This individual is called your Executor. You can appoint more than one person to act together as your Executors – in which case they must act together to make decisions to carry out your wishes. You can also appoint an alternate or alternates to act as your Executor in the event the first party you appoint as your Executor is unable or unwilling to act on your behalf. You can also make provisions in your Will to appoint an individual or individuals to act as the Guardians of your non-adult children.
A Will must be in writing and properly witnessed in order to be legally binding. An individual has to have legal capacity at the time they execute their Will.
There are a number of factors to take into consideration in creating a Will. It is strongly recommended that you employ the services of a legal or other approved professional to create your Will to ensure that your wishes are properly set out and that it is legally enforceable.
5. MEDICAL ASSISTANCE IN DYING (“MAID”)
In 2016, the federal government passed legislation which allowed physicians to assist someone to end their life in certain circumstances. In the event you are legally eligible under the program you can choose to end your life with the assistance of a doctor or nurse practitioner in British Columbia. There are very strict conditions which must be met. You must fill out a provincial form called the Request for Medical Assistance in Dying. This form must be signed in front of an independent witness – who must also sign and date the form. This form must then be submitted to your doctor or nurse practitioner. There is then a process which must be followed by the doctor or nurse practitioner. If this interests you we suggest that you discuss the MAID process with your doctor or nurse practitioner.
KCSCS is not providing legal advice with respect to any of the documents that are available for consideration in your situation. This list is not necessarily all-inclusive. There may be other documents and services that should be considered given your specific situation. We strongly recommend that you seek professional advice with respect to legal documents.
- All of these documents must be properly written and witnessed.
- All of these documents require that you have the legal capacity to understand and execute the documents at the time of their creation. This has to be taken into account when you are looking at the severity of your illness and the possibility that it might limit your ability to do things physically and mentally in the future.
- It is not legally necessary that these documents be prepared by a lawyer or notary, but it is recommended that they are.
- Do not hesitate to discuss the issue of costs with your adviser. They understand that everyone has to live within a budget. Arrangements can usually be made to make payments over time rather than having to pay one large bill at the end. Further, it is better to deal with these matters sooner than later. You don’t want to leave the timing to a point when you might not have the ability to get out and attend to the execution of the documents.
- Finally, we wish you well and hope attending to these matters will relieve some amount of stress for you and your family.
Helping my adult son manage his financial and legal matters during his cancer experience would have been impossible without legal authorizations in place. As a Stage 4 Metastatic Melanoma patient, he was hospitalized and too ill to manage workplace decisions, finances and medical decisions. With the help of a lawyer we put in place a representation agreement, power of attorney and will which allowed him to focus on treatment rather than worrying about medical authorizations, workplace and financial commitments. As his caregiver and legal representative, I was able to talk directly to all the agencies and provide direction, approvals and decisions on his behalf. On top of fearing for his life, I can’t imagine the despair if we did not have the necessary authorizations in place to help him.