Having a will is a way to have a final say!

With the recent release of Rising Tide: The Impact of Dementia on Canadian Society the media caused fear to rage throughout the country for about a week. It brought forth a brief outpouring of concern about Alzheimer's and dementia, its' costs and what to do. Not a lot was resolved other than a brief scare and it's gone again, then on to the next crisis.

However, the issue hasn't left us and will continue to escalate for the next 20 years and cost us billions of dollars as a country, let alone the cost in human trauma. How can we respond and what is the government doing?

The "Will" itself is only one component of a well thought-out Estate Plan that should acknowledge the potential of diseases like dementia and Alzheimer's and their impact on our lives over the long term. The provincial government for its part is adjusting the law to accommodate this circumstance.

Last week I spoke to a lawyer about how "Representation Agreements" address the possibility of incapacity, particularly because of dementia, Alzheimer's and like diseases.

The issues of "Wills and Estate Planning" are of particular interest to me based on a presentation I heard the lawyer make to a large group of seniors. In his presentation he brought up the subject of incapacity. I was astonished at the questions and how many of those attending were not prepared, particularly without any consideration to incapacity.

The provincial government created representation agreements in 2000. In doing so, it responded to a strong lobby from interest groups representing a large, aging population and the disabled community in particular. They wanted the laws to recognize that losing mental capacity might occur gradually. They also wanted the laws to let individuals whose mental capacity had diminished to participate in decisions affecting them. Accordingly, representation agreements let individuals appoint someone to help them manage their affairs and to take over their decision-making if they can no longer contribute.

The provincial government created two kinds of representation agreements. The first kind, sometimes called a "standard representation agreement," contains general powers for personal care and routine management of financial affairs. The second kind, sometimes called an "enhanced representation agreement," contains enhanced powers for health and personal care as well as general powers for routine management of financial affairs.

Since 2000, British Columbians have had the ability to choose to use a power of attorney or a representation agreement to let another person make decisions about their financial and other affairs. Most lawyers suggest that if clients can understand what they are signing, they should choose to use an enduring power of attorney for financial and legal matters and an enhanced representation agreement for health and personal care. They should not use an enhanced representation agreement for finances. As representation agreements require less mental capacity to sign than do powers of attorney, standard representation agreements can accommodate clients who cannot use an enduring power of attorney for finances where their mental capacity has already diminished.

New, relevant legislation received Royal Assent in 2007. The provincial government intends the new legislation to clarify the laws in two areas: the guardianship of incapable adults and incapacity planning instruments. Incapacity planning instruments include living wills (also called "personal declarations" or "advance directives for health care"), enduring powers of attorney and representation agreements.

During the fall 2009 session, the legislature amended the new legislation to let the provincial government implement the incapacity planning provisions separately from the provisions relating to adult guardianship.

The new legislation will support the continued use of enhanced representation agreements as a tool for personal and health care decisions, but not for financial decisions. However, if an existing enhanced representation agreement contains financial support arrangements, the new legislation will grandfather those arrangements. The new legislation will support the continued existence of standard representation agreements.

None of the provisions of the new legislation have come into force. The provincial government is still deciding when to implement all or some of the new legislation.

Now that may seem a bit long winded, but as more of us become victims of diseases like dementia, it becomes more important to take these conditions seriously and address these issues as part of our estate planning.

If the lawyer's presentation can be used as a cross section of the community, it makes it an even more urgent issue for individuals to address their personal status with a proper written plan. These conditions also make it imperative that the government should finalize the issues and move ahead with their implementation.

As we age, we tend to go to more funerals than weddings and sadly we see the problems expectations can cause in these family matters. With a valid will that appoints an executor you will have your say as to whom you want to be in charge.

Wills and Estate Plans are your final say, your last message to the family and all those you love. So again, I say, it is in not an issue to delay. If you don't have one, get one. It requires counsel and forethought. Take the time you need, to have the final say.

Live well & be involved,

David Hutchison