Quick answer: In British Columbia, “living will” is a common label rather than an official legal term. The tools that actually do the job are the advance directive and the representation agreement. An advance directive, made under the Health Care (Consent) and Care Facility (Admission) Act, records your instructions accepting or refusing specific health care in advance. A representation agreement, made under the Representation Agreement Act, appoints someone to make health and personal care decisions for you if you become incapable. Both take effect only while you are alive and lose all force at death.
We all want to have a voice in decisions about our health care. The thought of not being able to make decisions or express our wishes for medical treatment and personal care is scary. The good news is that there are options, including living wills, that allow you to plan ahead and protect yourself.
A living will is a type of advance care planning document. Advance care planning provides you with the opportunity to state your preferences and authorize the person of your choosing to make healthcare decisions on your behalf should you lose the capacity to do so.
It’s important to discuss your heath care wishes and instructions with an experienced lawyer. The team at Onyx Law Group understands the unique intricacies of advance care planning and can assist you with preparing legally binding documents, allowing you to plan ahead and reduce the future burden on your family. Contact our team to schedule a consultation today.
In this blog post, we will discuss living wills and other legal documents that can help you achieve your advance care planning goals. We’ll talk about topics such as the benefits of living wills, how to make a living will, and what happens if you don’t have one in place when you need it.
What Is a Living Will?
A living will is a written document that contains a person’s wishes regarding how they want to be treated if they are not able to give instructions or express their wishes at the time that health care is required (for example, because they are mentally incapacitated due to dementia, Alzheimer’s, serious illness, catastrophic injury, or other medical crisis).
“Living will” is actually an American term. In British Columbia, we use “advance directives” and substitute decision-making agreements like representation agreements to achieve similar goals. While the term “living will” is not used in British Columbia’s health care consent legislation, it is generally accepted to mean a person’s written instructions for future health care.
Before we switch to using the BC terminology, let’s go through some FAQs pertaining to living wills that can be used to provide (or refuse) consent for certain healthcare treatments based on your beliefs, values and wishes.
Is a Living Will Legally Binding in BC?
Yes. A living will is legally valid and binding if it is prepared in accordance with the detailed requirements set out in laws including British Columbia’s Health Care (Consent) and Care Facility (Admission) Act and the Representation Agreement Act.
How to Make a Living Will
Canada is made up of provinces and territories, and thus the requirements for making a legally valid living will vary by jurisdiction. In British Columbia, a living will must be in writing and signed and dated by you, in the presence of two witnesses. Only one witness is required if the witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.
Another key requirement is that you must be of sound mind. For that reason, it’s prudent for every adult to get advance care planning documents in place as early as possible. That is especially true for people in the early stages of progressive disorders such as Alzheimer’s disease; they should consider preparing these documents as soon as possible to avoid later problems.
Does a Living Will Differ from a Last Will and Testament?
A Last Will and Testament contains your instructions and wishes for your estate after you die. It deals with your property, debt, and care of minor children, among other things, and comes into effect on your death.
In comparison, a living will sets out your instructions and wishes regarding medical treatment and personal care while you’re still alive. It is only valid during your lifetime, and it only comes into play in the event that you become mentally incapable of providing your instructions or expressing your wishes at the time that health care is required.
Can I Specify Any Medical Treatment in My Living Will?
Yes, you get to decide in advance what healthcare treatments you will or won’t accept. You can include instructions relating to future healthcare treatment including end-of-life care, end-of-life decisions and palliative care, life support, and life-prolonging treatments (breathing machines, feeding tubes, cardiopulmonary resuscitation, blood transfusions, medications if you have a terminal illness, etc.). Essentially, you can give or refuse consent to specific treatments, so long as it is not an instruction prohibited by law or an instruction to omit to do anything that is required by law.
When Does a Living Will Come Into Effect?
The default is that an advance care planning document, such as a living will, becomes effective on the date the document is executed. It is possible to provide in the document that it does not become effective until a later event, but in that situation, the document must specify how the event is to be confirmed and by whom.
How Long Does a Living Will Last?
Your living will lasts for your lifetime, unless you revoke it (see the next section for more information on amending and revoking living wills). Compare that with a Last Will and Testament, which has no effect while you are alive but becomes legally binding when you pass.
What Happens to a Living Will After Death?
The authority granted by a living will ends when you die. The same is true of the authority granted under a power of attorney. The person you appoint to handle financial matters in a power of attorney can no longer handle your affairs or make financial decisions on your behalf after your death. That power belongs to the executor appointed in your Last Will and Testament.
Can I Change or Revoke My Living Will?
Your circumstances or wishes may change over time. You can modify or revoke an advance care planning document, such as a living will, at any point during your lifetime, provided you are mentally capable of understanding the nature and consequences of the change or revocation at that time.
Any advance planning document can be changed or revoked by preparing a new one (e.g., a new advance directive or representation agreement—see below for more information about these types of documents). You must give notice of a change or revocation to the relevant people. For example, to revoke a previous representation agreement, you must give written notice of the revocation to each representative and each alternate representative named in that representation agreement.
Revocation is effective when this notice is given, or on a later date if one is stated in the notice. If you have questions about revoking or changing your living will or other estate planning documents, we welcome you to contact Onyx Law Group for guidance.
Legal Framework for a Living Will in BC
Let’s turn our focus now to advance care planning documents using terminology specific to British Columbia.
Key Advance Planning Documents in BC
These are the key documents that are part of a comprehensive advance care plan in British Columbia:
- An Enduring Power of Attorney gives you the power to appoint a person you trust to handle your financial and legal affairs if you can’t. You can appoint a family member (e.g., your spouse, your adult child), a close friend, a professional (e.g., lawyer, notary, or accountant), or a trust company to be your attorney. A power of attorney cannot be used to appoint a person to make health care decisions or end-of-life decisions for you if you’re not capable of making those decisions yourself.
- A Representation Agreement gives you the power to appoint a person or people to make personal care and healthcare decisions on your behalf if you can’t (sometimes called a “healthcare proxy”). The person you appoint is your substitute decision-maker for healthcare and personal care. It’s highly recommended that you name an alternate in case your first choice isn’t able to act on your behalf to ensure that your medical and healthcare wishes are respected. British Columbia’s Representation Agreement Act sets out all of the requirements for making a legally valid representation agreement.It’s important to note that there are two types of Representation Agreements in BC: section 9 representation agreements and section 7 representation agreements. An estate planning lawyer at Onyx Law Group can help you determine which of these agreements is right for you.
- An Advance Directive is a written instruction that gives or refuses your consent to healthcare in the event that you are not capable of giving the instruction at the time the health care is required. An advance care directive (sometimes called a “health care directive”) is expressed directly to your health care providers, or to your representative if you have named one in a representation agreement. An advance directive must be followed when it addresses the health care decision needed at the time.No one will be asked to make a decision for you as long as the advance care directive is clear on that issue and addresses the health care treatment you need at the time. For that reason, it is crucial that your advance directive be well thought-out and detailed to address various contingencies and medical situations that may arise. If you don’t also have a representation agreement in place, a temporary substitute decision maker will have to be chosen when a health care treatment decision is needed that is not addressed by your advance directive.
The Importance of an Advance Care Plan
There are so many benefits to having an advance care plan in place. First and foremost, it gives you peace of mind. If you become incapacitated for any reason, your health care representative has the power to speak on your behalf to ensure that your medical and healthcare wishes are respected, and a person of your choosing has the power to manage your financial and legal affairs.
These legal documents give you the opportunity to communicate your wishes and instructions to your attorney, your health care proxy, and your healthcare providers. These people are legally bound to take action and make decisions in accordance with your written instructions if you become incapable. Having an advance care plan in place helps reduce the burden on your close family members because they will not need to argue over who should make decisions for you. They’ll have clearly laid out, written instructions that must be followed. This can relieve a lot of conflict, guilt, and second-guessing for family members who would otherwise be left to grapple with tough decisions such as whether to keep you alive by artificial means.
What Happens if I Don’t Have a Living Will in BC?
If you don’t have the appropriate legal documents in place, your loved ones will have to apply to the court to be appointed committee of your person and/or of your estate. Court applications are expensive and can cause delay in handling your financial affairs and health care needs. If no close family members are available, or if there is a dispute about who is to be chosen, the Public Guardian and Trustee will become involved to make decisions on your behalf, or to appoint another person to act as temporary substitute decision maker for you. That will cost time and money, and the person appointed may not be who you would have wanted.
At this point, it’s also worth discussing what happens if you don’t have a Last Will and Testament in place. If you die without a valid will, you lose control over decisions such as who will handle your estate, who inherits from your estate and when, and who will step in to raise your minor children. The cost of administering your estate can also be higher if you die without a valid will.
The cost of preparing legal documents such as a power of attorney, representation agreement, or Last Will and Testament varies based on factors such as the complexity of your wishes and whether you draft the documents yourself or with legal counsel (the latter is strongly recommended!). For many BC residents, the costs associated with preparing these important, legally binding documents are well-worth the peace of mind.
Want to Prepare a Living Will in BC?
The team at Onyx Law Group understands the unique intricacies of advance care planning. Our lawyers have the expertise to help you navigate those intricacies so you can create an advance care plan that reflects your wishes and reduces the future burden on your family.
It’s important to discuss your wishes and instructions with qualified legal counsel. The experienced estate lawyers at Onyx Law Group can assist you with preparing legally binding documents that reflect your healthcare choices and specific instructions. We can help you plan for your future and any possible incapacity you may experience, so your medical and healthcare wishes are respected and followed.
Advance care planning for healthcare choices is one part of a comprehensive estate plan. We strongly recommend making an enduring power of attorney for financial matters and a Last Will and Testament setting out instructions for who you want to benefit from your estate. Contact our team today and let us help you prepare all of these documents.