February 4th, 2021 by Colin Flannigan

Since COVID-19 begun last year, each day we are reminded how fragile life can be and that time waits for no one.

Planning for the inevitable and your own death is a very difficult topic to think about, let alone to discuss. However, it is better to be prepared for not only your sake, but for the sake of your loved ones as well. Discussing estate planning, power of attorney and capacity is one of the areas Associate Colin Flannigan helps clients with each day.

As he explains on AM 1150 with host Phil Johnson, there are several documents and capacity issues that can arise and there is no “one-size-fits-all” answer.

Listen to Colin discuss and give some helpful tips on planning for your estate.

FH&P Lawyers · FH&P Lawyers Law Talk - Estate Planning Documents


Phil Johnson: Colin Flannigan is joining us for the offices of FH&P Lawyers. We're going to talk about Estate Planning and the challenges that arise dealing with Powers of Attorney and representation, Mr. Flanagan good morning to you.

Colin Flannigan: Good morning Phil how are you doing today?

Phil Johnson: I've never been more aware of the tenuousness of life, we're reminded on a weekly basis by Dr. Bonnie Henry and Health Minister Adrian Dix that people are dying every day. We're hearing about the delay on vaccines and for every day that you and I don't have a poke in our arm, there are individuals out there that are going to contract COVID-19 and some of them are going to die. The longer we have to wait for the vaccine to arrive the greater the chances are that we might at some point in time find ourselves infected and that's where everything falls to you does it not?

Colin Flannigan: Well Phil you are absolutely right that these times that we living in are extraordinary difficult and with all of these issues that we are dealing with and the point you made about the Brazilian headline as well, that these issues are continuing to evolve daily as well as what we are facing. One of the items that people are really thinking about is estate planning because they are thinking about not only mortality issues but also capacity issues. Today’s topic is going to address not only capacity concerns within the life of COVID because some of the points and tips I’m going to give a little bit later on are going to be applicable for that. I would also like to talk about capacity issues and when we start seeking help generally because hopefully the vast majority of us will not contract COVID. I mean it is a concern obviously, we could all potentially but ideally we won't be needing or incapacity planning documents until many years in the future. When we are looking at incapacity planning, when we are starting to look for help, a couple things we are talking about here are Powers of Attorney, for helping us make legal and financial decision-making and representatives under Representation Agreements to help us make healthcare decisions. When we are looking at how we create these documents and how we consider the different capacity issues that might arise, we always remember if there's no “one-size-fits-all” but we must always look at what's going to be in the best situation for everyone's individual circumstances.

Phil Johnson: I want to jump in here, there I am I'm lying in a hospital bed I've got the intubation tube down my throat, I've got the mask over my face. I'm being forced to breathe by the motor of this incubation machine, I'm drifting in and out of consciousness, I'm really not of a whole mind and yet I don't have an agreement in place, I’m in serious trouble.

Colin Flannigan: Yes. Now that is one of the worst-case scenarios were talking about if you are in that type of situation and you don’t have incapacity planning, it’s sad. In that situation we are looking at very difficult scenarios either both the family members as well as for your doctors. In urgent scenarios the doctors could potentially appoint someone to be a temporary substitute decision-maker, however sometimes because family dynamics that's not an easy thing for doctors to do and in situations where there isn't an obvious or easy choice as a temporary substitute decision-maker it might fall on the family members to potentially apply under the Patience’s Property Act to be a comity.

Phil Johnson: I want to go here in a second so there is the individual lying there in the bed and I'm going to make him me, I have three people that are gathered around the bed I have a sister and two good friends. They all have indicated that they are willing to do whatever they can to help me. I have no way of talking to them, so who has priority my sister or the two good friends?

Colin Flannigan: It’s going to be whether or not the doctor would be able to point your sister as a temporary substitute decision-maker. Ideally we want to address this in advance because, I'm just going to go down the road a little bit here, and say if the doctors can't appoint someone, so say your sister is not there it’s just two really good friends, in that situation it might require someone to apply to the courts to have a declaration that you are incapable and to be appointed as a comity of the person and/or a comity of the estate.

Phil Johnson: Do one of those individuals have to hire you to write the appropriate documents to go somewhere and say this is a letter that does declare that Phil Johnston right now is not capable of looking after his life?

Colin Flannigan: It’s actually more involved than that and that’s the point I want to make here, the difficulties involved in that process. It is court appointed and it's going to require evidence that the courts are going to need as far as satisfactory for such a declaration. It’s going to require affidavits of not one but two doctors that you are not capable as well as affidavits of the people applying to give information about what your financial circumstances are, how they are going to manage your health needs as well as your finances and then actually have it heard in open court. We are talking months is how long that takes so if you are in a bad way suffering from COVID or another type of disease or injury when you are in a bad situation someone is going to have to make a decision quickly this is a recipe for disaster.

Phil Johnson: As you just defined this, I can sense the impending doom that because everything that you have defined now is talking with a lawyer, document gets written, needs to be put before a court; suddenly we are talking days if not weeks are we not?

Colin Flannigan: We are talking longer, if we are talking an application into the Patience’s Property Act, it’s months, that is not tenable, that is not planning it’s just planning for difficulties and a recipe for trouble and how much harder it's going to be on our friends, our family members watching us in that situation. The important thing is to try to do advanced planning, the whole idea is that may we all be so lucky that until our final day we have full capacity until we go to sleep at night and pass away in our sleep. Unfortunately the reality for most Canadians is that's not the way it goes. Capacity is often not a light switch, using very serious diseases like COVID-19 as an example there can be some losses for capacity but for some people we are talking about progressive disease for these scenarios as well. We are talking about alzheimer’s, dementia, when that loss of capacity it's not an easy thing to pinpoint in saying this is the day where it happened because as things progress there can lucid days or moments and the whole idea is when you are doing the planning not just making sure the documents are in order that you are going to need, if we are going to ask people to help us when we are in need we want to make their life easier to set them up for success so not only is it going to be easier for them to help us but it's going to help them make the right decision for us, it's in our best interest.

Phil Johnson: If you would go talk to a hundred people how many of them would have the documents that we are talking about in place?

Colin Flannigan: I would say less than 50%, probably somewhere between 25 and 40% would be my anecdotal guess.

Phil Johnson: That’s a scary number.

Colin Flannigan: It scares me Phil because you know how much I care about my clients and when I know that if some of my clients were to get sick, there would be serious complications having not shut all these plans in advance and I hate to always be the one that's talking about doom and gloom and the what ifs.

Phil Johnson: I don’t see that as doom and gloom, I see you as somehow gently and I gently style and manner to import to people this is an area of your life that you don’t want to be screwing with. This is an area of your life take you need to take exceedingly seriously because when you have that ventilator tube down your throat then it's almost too late.

Colin Flannigan: Absolutely. Even if something can be done, it’s far more complicated and it's imperfect for many different reasons and I just want to get into some of those important parts of why it’s imperfect is because the importance of the conversations and how to set people up to succeed when they are acting. When we are looking for people to act for us as our power of attorney or as our representative, one of the first things is we want to make sure when does the appointment become effective? Is it going to be effective right away or is it going to require a trigger event such as a doctor’s opinion that I’ve become incapacitated? What is best for someone always depends on their circumstances, who is the person they are appointing, what's that relationship like, how much trust is there, what's the relationship between that person and the rest of their families?

Phil Johnson: How does the doctor know who is the power of attorney, how does the doctor know who has the representation agreement, where is their awareness or where is the medical team’s awareness at KGH to what I do have in place?

Colin Flannigan: That is a very good question Phil and that's going to come and get some of the tips. So some of the tips are going to be this, when you do a representation agreement, when we are talking about when you are at KGH we are really talking about who is going to be making the health care decisions? So at that point when you do a representation agreement what I always talk to people about is making sure your family doctor knows right away because you can fill out a form that Interior Health has created that they refer to as MOST. On that form you get to indicate, on your medical records do you have a representation agreement and who your representatives are. I always recommend that the contact details are there as well, so if you do end up getting rushed to the hospital, when your medical file is pulled they can see, do you have a representative. One of the important things we are talking about with representation agreements is the long term care scenarios, and making decisions for our in-home care needs our living accommodations. But also refocusing on the serious questions; the importance of having end-of-life discussions with your representative to make sure they make the right choice if they have to make that tough choice for you.

Phil Johnson: That choice being, do we unplugged the machine and remove the tube.

Colin Flannigan: You got it, when to that decision for you. Make sure you have that conversation with your representative.

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