Quick answer: In British Columbia, you plan for “machines keeping you alive” with two documents. A representation agreement, under the Representation Agreement Act, names a representative to make health and personal-care decisions when you cannot. An advance directive, under the Health Care (Consent) and Care Facility (Admission) Act, records your own instructions to accept or refuse specific treatment. Make them while you are still capable, before an emergency forces the question.
When I was in private practice and assisting clients with their estate planning, we would often discuss their advance care planning. The discussions inevitably lead to 95% of my clients saying, “I don’t want to be kept alive by machines.” Some had strong and well researched views while others made this statement without deeply considering the circumstances in which a “machine” may be beneficial for their possible but yet unknown medical emergency. With a global pandemic upon us, we have all heard about patients being kept alive by ventilators. Ventilators are machines that move air into and out of your lungs when you are not able. Ventilators are the life support machines that many of my clients said they didn’t want.
Ventilators are not simple oxygen masks that are placed over your mouth. When a patient is put on a ventilator, they are often medically sedated and strapped down. A feeding tube will provide nutrients to the patient; this tube is typically inserted into the nose or a hole is made in the stomach. You will not be going to the bathroom on your own and you will not be having conversations with your family members while you are on a ventilator. You will not even know you are on a ventilator.
If your views have changed about being kept alive by machines, then you may want to update your Advance Care Planning documents and inform your family members. In many jurisdictions, you may legally appoint someone you trust to make medical and personal decisions for you when you are not able to. In British Columbia, the document is called a Representation Agreement and your Substitute Decision Maker is called a “Representative”. It is a similar to a Power of Attorney for Property (which I’ve discussed on a previous post) but instead of your Substitute Decision Maker making legal and financial decisions for you, a Representative makes medical and personal care decisions for you. This document is often called something different depending on where you live; such as Power of Attorney for Personal Care. And your Substitute Decision Maker may go by different titles as well.
I recommend that you do some research before you decide who to appoint as your Substitute Decision Maker for health care. Ideally, it is someone you absolutely trust and who is level-headed in an emergency. Think about your personal family circumstances.
- Do your spouse and children get along?
- Will the person(s) you appoint be able to manage the stress and act responsibly when tasked with making critical health care decisions for you?
- Is there someone you absolutely do NOT want to act and speak on your behalf?
- Have you discussed your wishes in detail with your Substitute Decision Maker?
- If you are not comfortable discussing your views and wishes with your appointed Substitute Decision Maker, then is this the right person?
Advance Care Planning is more than just appointing your Substitute Decision Maker. The Canadian Hospice Palliative Care Association (CHPCA) and the Nidus Personal Planning Resource Centre (Nidus) have resources to assist you. Nidus also has free sample Representation Agreements which may be used in British Columbia, and CHPCA has created an Advance Care Planning Toolkit (Workbook) for the public.
Your local provincial or state governments should also have resources available for you. As always, everyone’s personal situation is different and if appointing a Substitute Decision Maker is important, you should do your research and seek professional legal advice in your area.
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The two BC documents that put these decisions in your hands
British Columbia gives you two separate tools, and they work differently. Confusing them is the most common planning mistake.
A representation agreement, made under the Representation Agreement Act, names a person, your representative, to make health and personal-care decisions when you cannot make them yourself. A section 7 “standard” agreement covers day-to-day and routine health care and can be made even if your capacity is already reduced. A section 9 agreement is broader and is the one that can authorize a representative to make the harder choices, including refusing life-supporting care. If you want someone empowered to say “no more” to a ventilator on your behalf, a section 9 agreement is usually the instrument that gets you there.
An advance directive, made under Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act, is different. It does not appoint a person. It records your own instructions, giving or refusing consent to specified health care in advance, and a valid, applicable directive can be acted on by your care team without going through a substitute decision-maker at all. Many people make both: a directive for the choices they feel certain about, and a representative for the judgment calls a document cannot anticipate.
What a decision to refuse life support actually requires
Consent to health care in BC is not a formality. Under section 6 of the Health Care (Consent) and Care Facility (Admission) Act, consent has to be informed, given voluntarily, and given by someone capable of making the decision. The same standard governs a decision to refuse treatment. A ventilator, a feeding tube, or resuscitation can all be declined, but only through a decision the law recognizes as valid.
That is why the paperwork matters. An advance directive lets you make that refusal in advance, in your own words, so it speaks for you when you cannot. A section 9 representation agreement lets a representative make it in the moment, applying your known wishes to the actual medical situation. Without one of these, no one, not even a devoted spouse or child, automatically holds the legal authority to direct your care the way you would have wanted.
If you have no document: BC’s temporary substitute decision-maker list
Say you never made either document and you cannot consent for yourself. The system does not stop; it just takes the choice out of your hands. Section 16 of the Health Care (Consent) and Care Facility (Admission) Act sets a ranked list of “temporary substitute decision-makers” a health-care provider must work down, starting with a spouse, then adult children, then parents, and on through other relatives.
That list has real drawbacks. The person at the top of the ranking may not be the person you would have chosen. Adult children of equal rank can disagree at the worst possible moment, and a temporary substitute decision-maker is deciding without the benefit of a conversation you never got to have with them. Making a representation agreement or an advance directive is how you keep the decision yours instead of defaulting to a statutory list.
Frequently asked questions
What is the difference between an advance directive and a representation agreement in BC?
An advance directive, under the Health Care (Consent) and Care Facility (Admission) Act, records your own instructions to accept or refuse specific treatment and can be acted on without a substitute decision-maker. A representation agreement, under the Representation Agreement Act, names a representative to make health and personal-care decisions for you. One is your written instructions; the other is a person you appoint.
Can I legally refuse to be kept alive on a ventilator in BC?
Yes. You can refuse life-supporting treatment, but it has to be done through a decision the law recognizes. You can record the refusal yourself in an advance directive, or authorize a representative to make it under a section 9 representation agreement. Consent to or refusal of care must be informed, voluntary, and capable, under section 6 of the Health Care (Consent) and Care Facility (Admission) Act.
Who decides my care if I have no representation agreement or advance directive?
Section 16 of the Health Care (Consent) and Care Facility (Admission) Act sets a ranked list of temporary substitute decision-makers your provider must follow, beginning with a spouse, then adult children, then parents, and on through other relatives. This person may not be who you would have chosen, which is why making your own document ahead of time is worthwhile.
What is the difference between a section 7 and a section 9 representation agreement?
A section 7 “standard” representation agreement covers routine and day-to-day health and personal care and can be made even with reduced capacity. A section 9 agreement is broader and can give your representative authority over more serious decisions, including refusing life-supporting care. If you want a representative empowered for end-of-life choices, a section 9 agreement is usually needed.
When should I make these documents?
While you are still capable. Both a representation agreement and an advance directive have to be made before you lose the capacity to make health-care decisions, which means the time to act is before any emergency. Making them early also gives you the chance to talk your wishes through with the person you appoint, so they are not guessing later.
Disclaimer: This article is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC law and procedure change, and the rules that apply to any specific case depend on facts not covered here. For advice on your own advance care planning documents, speak with a qualified British Columbia lawyer directly.