COLUMN: Are you prepared for unexpected incapacity?

Most people have at least considered, if not already started, some form of estate planning

  • Nov. 23, 2014 11:00 a.m.

Legal-ease by Shari Yakashiro

Most people have at least considered, if not already started, some form of estate planning. They may have spoken with a lawyer, or tried to draft up their own wills.

However, most people don’t think about planning for unexpected events that might happen during their lifetime which might make them incapable of managing their affairs.

While we may think “that would never happen to me!” the unfortunate truth is that an accident may leave you physically incapacitated, or a disease or illness may leave you mentally incapacitated at any moment.

While it makes sense to prepare for the inevitable, why wouldn’t you want to prepare for the unexpected?

There are two documents every person should consider having in order to prepare for the unexpected: (1) an Enduring Power of Attorney, which deals with financial and legal decision-making, and (2) a Representation Agreement. This article will focus on Representation Agreements, but if you have questions about Enduring Powers of Attorney, speak with a lawyer who can discuss your options.

Ultimately, the purpose of a Representation Agreement is to allow adults to arrange in advance how, when and by whom, decisions about their health care or personal care will be made when they are no longer capable of making those decisions independently.

If a Representation Agreement is not prepared and an adult later becomes incapable of managing his or her affairs, a “Temporary Substitute Decision-Maker” (TSDM) will be appointed from a pre-determined list, or the Public Guardian and Trustee of B.C. may be appointed to make decisions on your behalf.

If a dispute arises, as they often do, family or friends will find themselves applying to court to become Committee of the incapable person.

Unfortunately, court applications come at a cost and regularly those costs can exceed thousands of dollars in legal expenses, and other out-of-pocket expenses.

The existence of a Representation Agreement can often avoid all of that hassle and expense.

More importantly, a Representation Agreement creates a contractual relationship between you and your Representative to ensure they act in good faith to carry out your wishes.  Many people may still refer to this concept as a “living will.”

However, you can include basic directions regarding whether to continue life-supporting care or ensure your last days are in comfort and with the necessary support you desire.

Although our hope is to live long, full and productive lives, the importance of preparing for not only death but incapacity can be an extremely important and useful exercise.

Sheri is an associate lawyer with RDM Lawyers LLP in Abbotsford. Questions or comments can be sent to