Types of Planning
This page is an introduction to the documents/tools and topics listed under the Information section. The specific tools are based on the legislative framework in British Columbia but many of the concepts discussed here are universal.
This page provides an overview of the types of legal planning adults can do:
- To have a say over matters affecting your life and death;
- To ease the burden on others (who need to know and may need legal authority to act).
- To avoid the involvement of government or the state in your private and personal affairs.
There are two key types of planning
- Personal planning – making arrangements for while you are alive but you may need assistance due to an illness, injury or disability; and
- Estate planning – making arrangements for after death.
We call the laws that govern personal and estate planning ‘enabling legislation.’ The laws that govern planning enables us to make arrangements to help ourselves and those we care about. It is not designed for the convenience of a system or institution – although, if our affairs are in order, it is good for the system too!
Shifting the spotlight
For many years, the spotlight and emphasis has been on estate planning. Legal professionals have received training and organized continuing legal education on topics related to this area. Traditionally, the Power of Attorney – a personal planning tool – has been placed under the estate planning heading.
A number of factors have made personal planning critical – the aging of the population, an increased concern for privacy, consent and human rights, and a shift in society’s values from ‘best interests’ (what someone else thinks is good for you) to self-determination.
Personal planning covers all areas of your life: health care, personal care, legal affairs and financial affairs.
You may come across the term ‘Advance Care Planning.’ This term is used by the health system. It emphasizes planning and discussion about the health care aspect of personal planning. But we need to recognize that effective planning is not only about health care and not only about the health system.
Personal planning is about planning for incapacity, end-of-life and other support needs.
Personal planning does not replace informal help provided by your friends and family. Instead, personal planning formalizes this support and gives them or others the legal authority necessary to help you. The best time to do personal planning is before a crisis occurs.
Carla, who lives in Rossland BC, recently suffered a serious stroke which has affected her memory and her ability to speak. Before her stroke, Carla had discussed personal planning with her close friend, Susan, but did not get around to making any legal arrangements. Following Carla’s stroke, Susan can look after Carla’s cat and bring her mail to the hospital because she has a key to Carla’s home, but Susan does not have legal authority to check on Carla’s bank account and make sure the bills are paid. She also can’t help Carla apply for her health insurance benefits through work. Susan wants to help research rehabilitation programs for her friend but does not have legal authority to access information about Carla’s current medical condition and test results.
When a health care decision needs to be made, the doctor must go by the default list in the law to select a Temporary Substitute Decision Maker for health care. This turns out to be Carla’s brother, Daniel, who lives in another province. Before Carla had her stroke, she and Daniel had phone contact about two or three times a year. Daniel feels ‘on the spot’ – he wants to help his sister but he doesn’t feel prepared for the kind of decisions arising from her stroke. He can talk with Susan about his sister’s care but everything takes longer and is more complicated than if Carla had made arrangements ahead of time.
The social worker told Susan that he might have to refer Carla’s financial and legal affairs to the Public Trustee, a government official, who can take over as her ‘statutory property guardian’ unless Daniel applies to court for guardianship. Under adult guardianship, Carla would lose her civil rights and be considered a non-person under the law. Adult guardianship is difficult to reverse, even if Carla recovers her abilities.
Susan did some research and learned that in BC, a Representation Agreement Section 7 is a legal alternative to adult guardianship and can cover health and personal care matters as well as routine financial and legal affairs. Susan and David discuss how they can help Carla make an RA7 so she gets help without losing her rights. (Susan also finds out what arrangements she can make now, before a crisis happens.) No other province in Canada has a legal alternative to guardianship for adults.
Personal Planning in British Columbia
Through personal planning you can avoid the delays and confusion arising in Carla’s situation by making your legally enforceable arrangements with those you trust and who know you best.
In BC, there are two paths for personal planning as shown in the following chart.
What if Carla planned ahead when she was considered capable of understanding?
Before her stroke, Carla was mentally capable of understanding the nature of personal planning documents and the effect of naming someone to have legal authority to help or act on her behalf as needed. If she planned ahead, she would have made the documents on the FUTURE PATH.
Adults who understand the nature and effect of the documents they are making, will make two legal documents to cover all life areas:
- A Representation Agreement Section 9 (RA9) to cover standard and broader health and personal care matters; AND
- An Enduring Power of Attorney (EPA) to cover routine and broader financial and legal affairs. (Some people may be able to use the Representation Agreement Section 7 with routine finances and legal affairs – instead of an EPA if they do not need broader financial powers.)
Other legal planning options for health care on the FUTURE PATH
Some people might also make one or more of the following arrangements. It will depend on your situation (eligibility) and your values and beliefs.
Organ or Body Donation
To legally give or refuse consent to organ or tissue donation if the question is asked at the point of death, you must register your wishes with the Organ Donor Registry. Some adults (usually older adults) want to donate their body for research or education purposes. You need to fill out a consent to body donation while you are capable of understanding. Learn more under the heading End-of-Life in the Information section of the Nidus website (see menu bar above).
As of September 1, 2011, BC has Advance Directive legislation that sets out the way to give or refuse consent for health care you might be offered by writing a clear instruction when you are mentally capable, to apply to a situation when you are not capable of informed consent. An Advance Directive has limited use on its own. Learn more under the headings End-of-Life or Advance Directive in the Information section of the Nidus website.
Medical Assistance in Dying
As of June 17, 2016, Canada has legislation that allows someone 18 years or older to request medical assistance in dying. You must meet the eligibility criteria for your request to be considered and assistance provided. More information is available under the heading End-of-Life in the Information section of the Nidus website.
Non-legal planning tools on the future path
There are many forms and guides you can use to express your wishes, values and beliefs about any life area. These cannot be used on their own as your consent if you are incapable. They can be useful for conversations and discussions with your representative and others.
The health system is particularly fond of forms it creates or adapts. The public/patients (and even health professionals) often think these forms must be ‘legal’ – they are not. It is also unethical to require patients to complete these documents.
These documents have no effect if signed by someone else. They can serve as an adult’s wishes if signed by the adult when capable. Examples of common non-legal documents about health care:
- Living will or advance care plan for expressing wishes and values
- DNR/No-CPR form
- MOST form (Medical Order for Scope of Treatment)
- Levels of Care or Degrees of Intervention – common in residential care and often given to families to sign.
NEED HELP TODAY PATH
Can Carla plan if her mental capability is in question?
Yes. Carla is on the NEED HELP TODAY PATH. In British Columbia, adults like Carla who need help today managing their affairs due to questions about their mental capability, may make a Representation Agreement with Section 7 standard powers.
The Need Help Today Path and the Representation Agreement Section 7 are essential for people who are vulnerable to adult guardianship (called Committeeship in BC). Under guardianship, adults lose their rights—sometimes called civil death.
Thanks to the RA7, adults whose mental capability in question and who do not already have arrangements in place, do not have to lose their rights in order to get help. Even if an adult cannot manage their financial affairs or make informed decisions about their health or personal care and are not capable to make documents on the Future Path, they may make an RA7. In fact, if a doctor or other health care provider says an adult cannot do these things – it backs up the need to help the adult make an RA7. As those who work in the health care system says “everyone needs an advocate” – that is the role of a representative.
STEPS FOR PERSONAL PLANNING
1. Determine the personal planning path (see above) descriptions and charts. If not sure, see examples.
2. Gather information and find forms:
- Future Path – see middle photo/heading on Nidus homepage
- Need Help Today Path – select according to individual’s situation
– see Caring for an Older Adult – for adult who was considered capable of making decisions independently and now their capability is in question due to serious illness or injury.
– see Helping a Relative with a Disability – for adults with a developmental disability (special needs), FASD, young adult with acquired brain injury.
3. Identify personal supporters – friends or family members whom you trust.
4. Discuss roles, duties, and areas of authority to be covered (health care, personal care, financial affairs, and legal affairs). See RA Resources (also EPA Resources if applicable).
5. Make the relevant legal documents.
6. Register your completed documents with the Personal Planning Registry.
7. Distribute copies of your completed documents as needed – see tips under Safekeeping Documents.
8. Review your documents once a year with your personal supporters.
For an Overview and Other Resources
- Check out the information on B.C.’s legal documents – in this section. Select from the menu bar at the top.
- Attend a free presentation – Get Help >Presentations
- Make an appointment for personal help – BOOK NOW
- Watch Videos and read Stories. Use our Values and Beliefs Discussion Guide.
- It isn’t only about Making Documents – be sure to read other aspects of personal planning under ‘My Documents’ in the blue menu bar at the top.
Estate Planning in British Columbia
Estate planning is about making arrangements for after death. There is only one path for making arrangements for after death – you must be mentally capable of understanding what the arrangements mean and how they may affect your intentions.
Estate planning can cover a number of things:
- Cremation or burial wishes.
- Funeral or memorial arrangements.
- Designating and distributing gifts and settling your estate.
Learn more under Estate Planning.