Thursday, August 25, 2005

Could a case like Terri Schiavo's happen in British Columbia?

According to newspaper accounts, Terri Schiavo collapsed in her home in 1990. Her heart failed, and she suffered severe brain damage. Doctors said that she was in a “persistent vegetative state.” She was fed through a tube. Her parents and her husband disagreed on whether she should be kept alive, or if the feeding tube should be removed. There were bitter court battles from 1998 until just recently, including two applications to the United States Supreme Court. Her parents took the position that she had some awareness of her surroundings, and there was hope for recovery. Her husband’s position was that she would not recover, and she would not want to continue to live in these circumstances. The courts held that her husband had the legal authority to decide and ordered the feeding tube removed. On March 31, 2005, Terri Schiavo died.

For detailed information on the Terri Schiavo case, there are links to the autopsy report and some of the court decisions in Schiavo at Findlaw Legal Links and Commentary.

Although the writer is not aware of any Canadian cases that are as dramatic as the Terri Schiavo case, there have been conflicts among family over the care of someone who is incapable of making or communicating his or her own decisions. If a person is incapable of managing himself or his affairs, a family member or friend may apply to court to be appointed to make decisions for the incapable person. Sometimes, there will be competing applications among family or friends, and the court is put in the very difficult position of deciding whom to appoint. See for example In the Matter of the Patients Property Act and Marie Moore, 2003 BCSC 1835, where the court appointed the Public Guardian and Trustee as committee in the context of dispute among family members.

There is no foolproof way of avoiding family conflicts over your care if someday you become incapable of making your own decisions. But, there are ways of minimizing the risk of conflicts over your personal care and health care, and of choosing whom you would want to make decisions for you.

In British Columbia, you may make a Representation Agreement, in which you can appoint someone to make decisions for you if you become incapable. You may also appoint a backup person, in case your first choice is unavailable or is unable to act.

In a Representation Agreement, you may decide what powers to give to your Representative including powers to make decisions about:

a. Your personal care, including clothing, diet, exercise, and accommodation;
b. Your minor health care
c. Your major health care, such as major surgery;
d. Your dental care;
e. Whether to consent to treatment for you; and
f. Whether to refuse to consent to treatment for you, including life support.

If you become incapable of making decisions, your Representative is required to follow any instructions you gave your Representative when you were capable. If you did not give your Representative any instructions relevant to a decision that the Representative needs to make for you, he or she must make the decision based on your known beliefs and values. If the Representative does not know your beliefs and values, then he or she must act in your best interests.

A Representation Agreement is a valuable tool to allow you to have some say over who will make personal and health care decisions for you if you become incapable of making those decisions yourself.

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